HMOs and 'dwellinghouses'

Are small HMOs (Use Class C4) and large HMOs a dwellinghouse? Brendon Lee looks at the lessons from a recent High Court ruling.

In planning law, the term ‘dwellinghouse’ is used in many important and varied statutory provisions. It is readily accepted that a building in use as a Use Class C3 Dwellinghouse is a dwellinghouse. But is a house in multiple occupation (HMO) also a dwellinghouse? This was the issue for the High Court in London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 2051 (Admin).

The importance of the meaning of a ‘dwellinghouse’

As mentioned above, whether a building is a ‘dwellinghouse’ has varied importance throughout planning law. Some key ‘dwellinghouse’ provisions include:

• Section 55(2)(d) of the Town and Country Planning Act 1990 (“the 1990 Act”) – Excludes from the meaning of ‘development’ and the need for planning permission the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;
• Section 55(3)(a) of the 1990 Act – Includes within the meaning of ‘development’ and the need for planning permission the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used;
• Section 171B of the 1990 Act – Provides immunity from planning enforcement where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse; and
• The Town and Country Planning (General Permitted Development) (England) Order 2015 (“2015 Order”) – Provides various permitted development rights to dwellinghouses.

As can be seen from the above, if an HMO is a ‘dwellinghouse’ then it will have the benefit of many key statutory provisions from when planning permission is required to when planning enforcement can be taken.

Is an HMO a dwellinghouse?

The Brent case concerned a statutory review of an inspector’s decision to quash an enforcement notice issued by the London Borough of Brent. The main issue for the court was whether the inspector was correct in finding that the building in use as a small HMO (Use Class C4) was a ‘dwellinghouse’ and therefore benefited from the building extension permitted development rights for dwellinghouses in Part 1 Schedule 2 of the 2015 Order.

The court found for the reasons set out below that HMOs, including both small HMO (Use Class C4) and large HMOs (sui generis), are ‘dwellinghouses’ and that no error of law had been made by the inspector in such finding.

The starting point for consideration was the definitions of Use Classes C3 and C4 in the Town and Country Planning (Use Classes) Order 1987 (“the 1987 Order”).  These are:

• Class C3. Dwellinghouses - Use as a dwellinghouse (whether or not as a sole or main residence) by— (a) a single person or by people to be regarded as forming a single household; (b) not more than six residents living together as a single household where care is provided for residents; or (c) not more than six residents living together as a single household where no care is provided to residents (other than a use within class C4). Interpretation of Class C3 For the purposes of Class C3(a) “single household” is to be construed in accordance with section 258 of the Housing Act 2004.
• Class C4. Houses in multiple occupation - Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”. Interpretation of Class C4 For the purposes of Class C4 a “house in multiple occupation” does not include a converted block of flats to which section 257 of the Housing Act 2004 applies but otherwise has the same meaning as in section 254 of the Housing Act 2004.

Noting the underlined wording above, the Court confirmed that a building in use as Class C4 must be a dwellinghouse. In short, the Judge reasoned that “Use Class C4 applies only to the use of a dwellinghouse by not more than six residents as an HMO. If the building in question is not a dwellinghouse at all, it will not fall within Use Class C4 in the first place. Equally, if a building is accepted to be in Use Class C4, it must by definition be a dwellinghouse”.

However, what is the meaning of a ‘dwellinghouse’ and can it encompass other uses beyond Use Classes C3 and C4? The Judge set out the following legal principles in answering this first question:

i. A dwellinghouse is a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (known as the ‘Gravesham test’);

ii. Whether any particular building is or is not a dwellinghouse is a question of fact; and

iii. A factual assessment of whether or not something is a “dwellinghouse” may require consideration not only of whether it provides the facilities needed for day-to-day private domestic existence, but also consideration of the actual use to which it is being put.

Thus, a building which, although possessing all those facilities, was in mixed use by an occupier who lived in the upper part of the house while operating an estate agent’s in two rooms on the ground floor, was held on the facts not to be a dwellinghouse in Scurlock v Secretary of State for Wales (1976) 33 P&CR 202. Equally, a dwellinghouse converted for use as (for example) a hostel or a hotel would no longer be a dwellinghouse, as it would no longer allow for “private domestic” existence.

A dwellinghouse would not lose its character as such simply because it was vacant, or a second home only visited at weekends or in a particular season, or incapable of use as such owing to weather conditions or a national emergency. It could still be a dwellinghouse if it was put to use to house a company’s employees and their family during a tour of duty, or it was being used on a timeshare basis for holidays along with other owners.

On the second question, the Judge noted that a ‘dwellinghouse’ may remain as such while being put to a number of different uses and Use Classes C3 and C4 are not exhaustive of the uses to which a dwellinghouse may be put. By example, an HMO may be a dwellinghouse (provided it satisfies the Gravesham test) even if it is not in Use Class C4 (small HMO) which requires no more than 6 residents to using the dwellinghouse.

What this means for you

The Brent case confirms that the meaning of a ‘dwellinghouse’ is wider than Use Class C3. It includes Use Class C4 and may also include large HMOs and other uses provided they meet the Gravesham test. For landowners this means that if their property is a dwellinghouse then they will benefit from the statutory provisions relating thereto such as a shorter four years’ period for planning immunity, dwellinghouse curtilage ancillary uses and permitted development rights.

Brendon Lee is a Senior Associate in the Planning, Highways & Environment Team at Harrison Clark Rickerbys.