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As councils across the country ramp up their campaign against student landlords and houses in multiple occupation (HMOs), the Residential Landlords Association and leading property solicitors claim tougher planning rules may not prove to be the answer to controlling shared homes.
The issue is a technical problem that may not be settled until a council rejects a planning application for a small HMO and the landlord takes the matter to appeal in front of a planning inspector.
The law is simple – a council can apply for an article 4 direction that requires a property owner switching the change of use of a home from a single unit to one shared by three to five unrelated occupants.
Larger HMOs for six or more tenants already need to apply for planning permission.
According to the Residential Landlords Association, switching planning use from a residential property (Class C3) to a small HMO (Class 4) only needs planning permission if the change involves a ‘material change of use.’
The problem with the law is what constitutes a material change is subjective and each planning case is considered on its own merits.
Property lawyers argue that changing from a family home that has two or three teenagers with all the noise, activity and traffic that goes with it is no different from a small HMO with three or four students or singles living in bedsit rooms and represents no material change.
“If a change occurs but it is not material then planning permission is not required,” says the RLA.
“Case law establishes whether there is a material change of use is a question of fact and degree but the fact that, in the broadest sense, the property continues to be used for residential purposes does not mean that there could not have been a material change of use.
“Generally, it is a matter for planning inspectors ultimately, rather than the courts. A decision on materiality is unlikely to be susceptible to a successful challenge in Court unless it can be said that there was no reasonable tribunal properly directing itself as to the law could come to that conclusion.”
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