Single dwellinghouses, sub-division and planning control

Roderick Morton analyses a High Court ruling after a planning inspector allowed an appeal against an enforcement notice issued by a council over the alleged sub-division of a house.

In Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin) a house was converted to four bedsits (each with own kitchen and bathroom facilities) and two bedrooms (without own kitchens and bathrooms). A communal kitchen, bathroom, lounge and garden were each accessible to all occupiers. It appears that there was little evidence of exactly who used the communal facilities.

The LPA enforced against five flats. Under appeal ground (b), the appellant said it was an HMO comprising four flats and 2 bedrooms. A proposal (described as retrospective) to change to a C4 HMO had recently been refused (against officer advice). 

Before the inspector, the LPA argued that the HMO rooms were themselves a separate flat, though it accepted that other descriptions were available. It also argued that the property was not an HMO because the self-contained flats meant that it did not meet the “standard test” for an HMO in the housing legislation. Hence the decision to describe it as 5 flats.

The inspector found that a converted property may still be an HMO overall while containing self-contained flats (the “converted building test” in the HMO legislation) if some rooms are HMO rooms. The LPA’s reliance on the standard test was wrong.

He also found out that the HMO rooms with communal facilities could not be described as a self-contained flat as they were distributed around the building and the occupants of the four self-contained units could access the communal kitchen, bathroom and lounge.

The inspector was therefore faced with changing the breach allegation. The question was, what to and would it cause injustice?

The inspector decided that it was a C4 HMO, refused to change the breach allegation due to the prospect of injustice and quashed the notice. The LPA appealed.

At the High Court, the judge noted that there was no definition of a dwellinghouse in planning statute. The accepted definition was that in Gravesham v SSE – that a “distinctive characteristic of a dwellinghouse” was its “ability to afford to those who use it that facilities required for day-to-day private domestic existence”. The question of whether something was a used as a dwellinghouse was a matter of fact and degree; a judgement for the planning inspector, not the court.

The LPA argued that the inspector ought to have considered whether the house had been subdivided into multiple dwellinghouses and/or that he ought to have explained his decision that the house continued as a single dwellinghouse. PINS argued that the inspector had reached the decision that, while the flats were capable of self-contained use, the access to the communal facilities meant that they were no so used. That was a judgement well within the inspector’s powers and shouldn’t be interfered with.

The judge suggested that the notice was concerned with the subdivision of the property. He suggested that the issue between the parties was whether there had been subdivision. He said that the inspector had resolved that in favour of the appellant and that this was a decision the inspector was entitled to make, given the existence of communal facilities, and not one to be reversed by the court.

As he put it:

“It is possible, at least in principle, for a house to remain in use as a single dwellinghouse falling within the scope of Use Class C4, notwithstanding that it includes a mixture of both self-contained and shared residential accommodation. It is for the decision maker to judge on the facts of the given case whether such a building remains in use as a single dwellinghouse.”

The LPA also argued that the inspector needed to give reasons for departing from assumption that something that was a self-contained flat was its own subdivided use. The judge decided that the inspector had accepted that the fact that the communal facilities were open to the flat-occupiers was enough. Again, that was a decision for the inspector.

Comment

This is an unusual case. The decision to call the conglomeration of non self-contained rooms and communal areas a fifth flat is bizarre and effectively lost the ground (b) appeal. The council appears to have been concerned that, if it conceded that the property was an HMO, it could not have enforced (C3 to C4 is PD). But a description of a mixed use of flats and HMO would have solved that problem (there is no PD to move to a mixed use). Indeed, there was already an Article 4 direction in the area so the point was misguided in any case. The mistaken breach description put the council on the back foot as the inspector had no option but to change it. 

The unusual aspect is the inspector’s decision to allow the four self-contained flats to be described conceptually as part of an HMO despite being self-contained. It is fair to say that the inspector’s decision was light on this aspect. He appears to have accepted that the fact that the communal lounge and kitchen were available to the occupiers of these flats was enough without, it seems, much evidence of actual use. And this aspect was judicially backed. In other cases, other inspectors have sought evidence of actual use of the communal facilities and have tended to assume that occupiers with self-contained facilities are more likely to stay in their rooms and use them unless the contrary is demonstrated. PINS were, perhaps, lucky that the judge did not find the inspector’s lack of explanation sufficient to require a redetermination.

The decision should not be seen as endorsing a general principle that flats in an HMO are to be considered as part of the HMO. It is common, where flats are alleged, for developers to claim they are HMO rooms, not least because the internal space standards are different. This decision may help some such developers. But enforcement officers need only keep taking pictures of empty communal kitchens to refute this and most inspectors will be receptive of such evidence.

The other lesson is that the decision appears to endorse the concept that a house with a mixture of flats and HMO rooms can remain a single planning unit; in other words, the mere existence of a flat does not necessarily split the planning unit. That would suggest it remains open to the LPA to describe the use as a mixed use. That would have been the natural description in this case, a fact the council appears to have tacitly acknowledged before the inspector. 

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.