Building regulations and sound testing for HMO?

by Readers Question

15:33 PM, 14th October 2014
About 4 years ago

Building regulations and sound testing for HMO?

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Building regulations and sound testing for HMO?

I am creating a 6 bedroom HMO, with ensuite to most rooms, part of the work is adding a loft conversion hence I cannot avoid building control.

I have been told by building control, “it is considered that the bedrooms do meet the definition of rooms for residential purposes in that the residents are likely to have seperate tenancy agreements and whilst they may share kitchen facilities they will be living separately.”

Building control is therefore demanding full acoustic pre-completion testing; I don’t think they will back down on this. As I will be replacing ceilings etc anyway, I intend to put in a reasonable standard of sound insulation. After all tenants that can sleep at night, are more likely to remain for a long time! The issue is the requirement for the acoustic testing.

Building control has sidestepped building regulation 45/3/195 appeal on the bases that unlike that case my tenants will have separate tenancy agreements; they will also have locks on their bedroom doors.

The other issue I have is that I could take a family home, rent out each room on its own tenancy hence creating an HMO, without BC having any input, as the current bathrooms etc can just be used. I could then add en-suite to rooms, but as it is already an HMO at that point, there would be no “conversion” to tiger the sound regulations.

I expect the cost of an BC appeal will be more then the sound testing costs anyway.

Thoughts please

Iansound



Comments

JohnCaversham

16:14 PM, 14th October 2014
About 4 years ago

The problem with BC and sounds regs is that if you install what you consider to be an adequate regime ie suspended ceilings below, floating floors above AND then the property fails the noise test-you'll have to rip it out change the spec and do it all again until it passes. Noise transfer especially in older buildings is a very specialist science on its own and if not done correctly in the first instance will prove to be very very costly. Best advice would be to contact a specialist for advice, you can still undertake the work yourself but to the specialists specification to keep the costs down...
From flat conversion experience, minimum spec would be acoustic rated floating floor above laid over original floor, acoustic rated rock-wool within ceiling void, suspended ceiling below consisting of 30mm acoustic rated plasterboard. Walls will need to be acoustic rated too with 30mm acoustic plasterboard on battens to stop any flanking issues, door frames/doors and communal area's are always a problem too..As you can see there's a fair bit of detailed work to consider so beware and seek professional advice if need be..Hope this helps...BR JM

matchmade

16:59 PM, 14th October 2014
About 4 years ago

I agree with John Maynard: sound-proofing can be an absolute nightmare in old houses. It's not just a question of insulating the ceiling cavities and suspending/floating the ceiling and floor boards: there may also need to be significant structural alterations to how the roof timbers are mounted in the walls, to reduce transmission of impact noise.

Why do you need to have separate tenancy agreements and locks on the doors? Why not just run a houseshare with a single AST, to which people are added or removed as tenants come and go? Your latter suggestion to add ensuites over time and avoid tangling with Building Control sounds a better one to me, but it depends if you think you will get better tenants and rent levels with the lockable rooms option.

Kevin Biggins

11:31 AM, 16th October 2014
About 4 years ago

I have been through this and it was a nightmare, 3 retests and it still did not pass along with three lots of remedial work.. Avoid the loft conversion and you avoid licensing costs and expensive fire alarm systems as well.

David Mensah

9:39 AM, 18th October 2014
About 4 years ago

The interesting question is whether or not "rooms for residential purposes" applies to HMOSs-- see e.g. Building Regs
http://www.legislation.gov.uk/uksi/2010/2214/regulation/2/made

“room for residential purposes” means a room, or a suite of rooms, which is not a dwelling-house or a flat and which is used by one or more persons to live and sleep and includes a room in a hostel, an hotel, a boarding house, a hall of residence or a residential home, but does not include a room in a hospital, or other similar establishment, used for patient accommodation;

So one question is -- will your HMO be classed as a "dwellinghouse"
Here is John Pugh-Smith's opinion:
http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=17506%3Ato-permit-or-not-to-permit-part-two&catid=60%3Ahousing-articles&Itemid=28

Building is classed as C4 still performs the function of an ordinary dwellinghouse and therefore benefits from the permitted development rights of Part 1 of Schedule 2 of the GPDO so that minor extensions and alterations will not need a specific grant of planning permission, a view supported by informal advice from the DCLG

in this case he is arguing wthat an HMO benefits from permitted development rights because it is a "dwellinghouse".

For planning it seems clear that a typical HMO will be a dwellinghouse (unless there has been a material change of use, perhaps with a very big one). An open question is whether or not BC uses the same definition of "dwellinghouse", as the guidance above about "rooms for residential purposes" includes a residential home, which would be a dwellinghouse for planning.

I don't think the soundproofing rules apply to you, but good luck arguing that case. It would be worth taking professional advice.

Joe Bloggs

15:59 PM, 18th October 2014
About 4 years ago

im pretty sure adding an en-suite does require building reg. approval.

Ian Ringrose

17:47 PM, 18th October 2014
About 4 years ago

Reply to the comment left by "David Mensah" at "18/10/2014 - 09:39":

Thanks David,

This is part of case I made to BC along with the 45/3/195 building regulation appeal (https://www.gov.uk/.../Building_regulations_appeal_45-3-195.pdf). They claim that I am different from that appeal, as I will not be renting to a group of student, but to separate professionals each on their own ASTs.

Do you have any ideal who I should take advice from and the likely cost?

I have looked at the building control appeal process and it will take at least 4 months, given lost rent over that time, and the risk that I will not win, I can’t decide if I should just give up and let BC have their way.

David Mensah

8:21 AM, 19th October 2014
About 4 years ago

Hi Ian,

I would phone up a local planning consultant or two, and ask them if they have experience. It shouldn't be that expensive. Otherwise perhaps someone like David Smith at Anthony Gold Solicitors, who also comments on this blog.

If you look here
http://www.planningportal.gov.uk/buildingregulations/approveddocuments/parte/faqs
you'll find:

"
Should rooms in Houses in Multiple Occupation (HMO) be treated as Rooms for Residential Purposes?

There is no single answer to this question. The term “House in Multiple Occupation” (HMO) is defined in the Housing Act 2004, and a wide range of premises will fall within the definition. Many of these premises will contain rooms that would also meet the definition of a room for residential purposes given in regulation 2(1) of the Building Regulations; however there are others that will not. Each case should therefore be considered on its own merits.

When deciding whether a room or a suite or rooms is a room for residential purposes, the list of establishments in which rooms for residential purposes may be found, which is given in the definition in regulation 2(1), provides useful guidance. It states that a room or suite of rooms, used by one or more persons to live and sleep, in a hostel, hotel, boarding house, hall of residence or residential home is included in the definition of room for residential purposes. Consequently rooms or suites of rooms used by one or more persons to live and sleep in HMOs used for those purposes, or in HMOs which have a substantially similar use, are likely to be rooms for residential purposes, although it is necessary to carefully consider each case individually.

Rooms or suites of rooms in HMOs which are not hotels, hostels, boarding houses, halls of residence, residential homes or similar are therefore unlikely to be rooms for residential purposes as defined in the Building Regulations. It is not possible to give definitive guidance, but it is unlikely for example that bedrooms in a HMO which consists of a single family dwelling-house which is shared by a small group of students could be regarded as rooms for residential purposes.
"
which suggests that BC makes a distinction depending on how the rooms are being used.

You'll find the same principle in this BC appeal Ref: 45/3/195
http://tinyurl.com/pk2pk6o
for a very similar HMO property development to yours.
The Secretary of State argued
"15. The Secretary of State considers that, when deciding whether a room or a suite or rooms is/are a room for residential purposes, the list of establishments in the definition given in Regulation 2(1) is important. In order for a room or suite of rooms to meet the definition, the intended use must either be one of the listed establishments (i.e. in a hostel, hotel, boarding house, hall of residence or residential home), or must have a substantially similar use.
16. In this case, the building in question is intended to be shared by a group of people living as a household and is more akin to a dwelling-house. The Secretary of State therefore takes the view that the use of the building is not similar enough to the arrangements found in hostels, hotels, boarding houses, halls of residence or residential homes for the rooms to meet the definition of a room for residential purposes given in Regulation 2(1).

The LABC uses this case in their guidance (2009)

"Determination on HMOs ref: 45/3/195 dated 30/10/2008
In order for a room or suite of rooms to meet the definition of ‘rooms for residential purposes’ given in Regulation 2(1), the intended use must either be one of the listed establishments (i.e. in a hostel, hotel, boarding house, hall of residence or residential home), or must have a substantially similar use.
As a result of the above determination Where rooms are not rooms for residential purposes, requirements of E1 and therefore PCT can not be applied to a House in Multiple Occupation, such as dwellings occupied by a group of students under a joint tenancy agreement, where locks are not fitted to internal doors."

I think that the "using it as a group under a joint tenancy agreement' argument is becoming outdated, but if BC are using such arguments, then in your case it may save you lots of money if you start out letting it in this way.

David Mensah

9:51 AM, 19th October 2014
About 4 years ago

Hi Ian,

I see that I didn't read your post properly as you had already cited the appeal case, sorry about just repeating it.

It seems that your appeal with BC will hinge on whether or not they view your tenants as something akin to one "household" --
You'll find arguments that try to distinguish a "single occupancy" group of sharers v.s. a multi-occupancy group of sharers in leasehold disputes about clauses that restrict to " a private residence in one occupation only..."
just google "Roberts vs Howlett" to find lots of info and other cases.

They look at things like -- shared use of the kitchen, locks on doors, whether they form a social group, joint tenancy and the like.

Landlords have won cases with groups of students, or with, for example two couples sharing.

More recently, the HMO regulations have clarified to some extent what is meant by a household for planning law (to first order a household is only formed if people are related, i.e. C3 v.s. C4), which negates the tests above, but that doesn't mean that the same definition is used for BC, who apparently are still trying to apply such tests.

Lots of student houses on single AST's probably function very similarly to your professional HMOs -- students come and go and just add/subtract themselves from a single contract.

One option for you would be to just start with a group of professional sharers on a single AST. Unless demand is very low, you should be able to find professionals willing to do that if joint responsibilities are delineated clearly enough. No locks on doors is also possible, we don't have them on any of our HMOs for professionals.

It would be worth asking BC exactly what tests they use. Given the lack of clear guidance, your BC probably have their own (possibly eccentric) guidelines for what constitutes a single household, or they may just be making it up as they go along.
My own experience with council officers is one of much confusion about what multiple occupancy v.s. single household means in different contexts.

Getting the right level of sound insulation between different floors is one thing, between separate rooms is pretty hard and probably not worth it.

Ian Ringrose

14:42 PM, 19th October 2014
About 4 years ago

Hi David,

The area does not give the option of letting to a group student and as it will have 6 letting rooms I most unlikely to get a group of professionals willing to take it on a single AST. The property is in a very poor state so most ceilings need replacing anyway and a lot of walls will need re-plastering, so a “half way” conversation to a HMO doing the rest of the work later does not make sense. For the same reason the additional cost of getting the property up to the standard to pass the sound testing is estimated to be only a few hundred pounds per room.

Thanks for the pointer to “Roberts vs Howlett”, its conclusion seems to be “the students were close friends and thus a genuine social unit, e.g. they shopped and dined communally”. My tenants will not know each other before they sign the AST, and there are most unlikely to shop and dine communally, so it does not help me.

-> They look at things like — shared use of the kitchen locks on doors, whether they form a social group, joint tenancy and the like.

The only item from the from list that helps ms is “shared use of the kitchen”

Once I get over my current cold enough to be able to talk, I will give a few companies a ring to get quotes for doing the sound testing, before deciding how much (if any) it would be worth spending on an appeal.

David Mensah

16:40 PM, 19th October 2014
About 4 years ago

at any rate, this "rooms for residential purposes" business is quite troublesome. I don't think the original rules were meant for anything like the kind of HMO your are trying to create. I can see the case of applying these regs for very large HMOs that start to blur into hostels, where, for example, everyone has their own cooking facilities and bathroom.

What if you had just done up your house for a family (C3) -- then the regs would have been normal. If later you changed to an HMO (C4), which is permitted development outside of Article 4 areas, suddenly you could be required to change everything even if no building work occurs because there is a material change of use. How would BC decide if the group in your house satisfied the "household" criteria.

This issue is a bit like the separate council tax per room issue -- it needs to be clarified.

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