Southampton City Council: Dan Wilden is pleased to have won an appeal against the decision of Southampton City Council to refuse a certificate of lawfulness for a three-person HMO (Use Class C4).

This appeal decision has been a long time coming with the appeal unbelievably submitted in May 2022. There was no particular reason for the almost 16-month delay – but average timescales for enforcement and certificate of lawfulness appeals, which the Planning Inspectorate lumps together, have suddenly shot up to over a year. It was unfortunate in this case because our client was waiting for the certainty of the appeal decision before selling the property.

The application for a certificate of lawfulness for a Use Class C4 HMO was refused by the Council when they noted in our client’s comprehensive records that for around 18 months the property was only occupied by two tenants – even though nothing else changed and the third room was advertised for letting throughout. The definition of a HMO excludes “any building which is occupied only by two persons who form two households”. The Council saw an opportunity and decided that with only two residents for an extended period, a change of use must have been made from Use Class C4 to Use Class C3 (normal residential dwelling) – a change of use which would have been permitted development and thus lawful. When the third room was eventionally re-occupied the Council claimed the opposite change of use occured which, because of an Article 4 Direction covering the whole of the Council area, was not permitted development and thus without planning permisison was an unlawful change of use. As such they refused to issue a certificate confirming the HMO use was lawful.

The difficulty with the Council’s approach is that the Use Class C3 definition clearly requires all the residents to “be regarded as forming a single household” or “living together as a single household” leaving a property occupied by two persons forming two households in neither use class.

On appeal we went to lengths to make it clear to the Inspector that during this period the remaining tenants continued to live exactly as if were a three person HMO as “seperate households”, the third bedroom was kept off limits to them, was advertised continuously and was viewed by prospective tenants through letting agents. The Inspector agreed with us that what had occured in these circumstances did not amount to a material change of use. In planning law a change of use is only development (and so within planning control) if it is a material change of use. So the Inspector concluded that no development took place in vacating the third room nor in reoccupying it again. As such the Inspector decided to issue a certificate of lawfulness to indicate that the use of the HMO for three persons was lawful.

If you have a HMO or indeed any other development for which you would like to obtain a certificate of lawfulness, speak to one of the consultants at Pure Town Planning. Things are often not as straightforward as they first appear…