RESIDENTIAL LANDLORDS ASSOCIATION ARTICLE 4/HMOS WHAT IS A MATERIAL CHANGE OF USE

 

Material Change of Use

If a use falls within class C4 (small HMO) instead of C3 (single dwelling) as the result of a change of use (e.g. if a group of young professionals or students move into what was a family home) there is prima facie a change of use. However, the Local Planning Authority and, on appeal any Inspector, should consider whether that change of use is such as to be a material. It will only be material if, as a matter of fact and in the circumstances of the individual case, the change of use was material. It is the making of a material change of use which necessitates an application for planning permission.

If a change occurs but it is not material then planning permission is not required

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 speaking, 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.

Just going from one use class to another is not, of itself, bound to be a material change of use.

  1. What is important in assessing whether a material change of use has occured is:

    (a) The character of the relevant uses (before and after), and
    (b) their consequences in terms of planning factors, such as noise, traffic generation and the like. Both of these concepts are relevant.

    You compare what was actually done in the previous use, compared to what was actually done following the change of use. The materiality of a change of use has to be judged in the broad context of likely planning consequences of that change in land use terms and not just be comparing the different activities that take place.

    Where the activity in question remains the same, a change in the identity of the person carrying it on is irrelevant. Under planning legislation it is not the particular purpose of any particular occupier, but the character of the use of the land. It is the land use consequences that need to be looked at. The character of the use of the land is what is important.

    Loss of a particular type of accommodation e.g. small residential units can be a factor in determining that there is a material change of use involved. The effects on the residential character of an area, strain on welfare services and reduction in stock of private accommodation available for renting or family use can be planning considerations to be taken into account in deciding whether or not there is a material change of use involved.

  2. Factors to be looked at could include:

    (i) The outward appearance of the building
    (ii) Whether or not there is any change in the internal arrangements within the building
    (iii) Whether or not these changes are consistent with the conventional family home.
    (iv) What are the actual changes which would result?
    (v) Increased activity, e.g. comings and goings.
  3. Importantly it is the land use consequences in planning terms which decide the issue.

At present there are a series of planning inspector’s decisions but, importantly, these were determined under the old Class C3 category, i.e. family homes and those lived inby individuals (up to six in number) were treated as one. The creation of the new Class C4 may lead to a different approach. Details of the existing case law are attached. There is, however, the possibility of a reversion to the pre-1987 position as exemplified by the Oxford case. We will not know the outcome of this until there have been some decisions by the planning inspectorate and possibly the Courts on this issue.

Case Law

The first relevant case was in 1986 prior to the introduction of the now superseded Class C3. Here the planning inspector held that two terraced houses in Oxford each occupied by four students (who were placed there by their college) constituted material changes of use (20 and 47 Oatlands Road, Oxford (Appeal Reference 85/1880-82-P6 and 1831/P6)). In another case a planning inspector decided that where there were nine occupants, this amounted to a material change of use (8 Arthur Street, The Arboretum, Nottingham (Appeal Reference 97/285289/P6))

On the other hand the Planning Inspector decided that a large terraced house in Leeds, formerly occupied by a single man, was not the subject of a material change of use where the house was now occupied by eight students. He regarded them as being a single household. They had all signed the same tenancy agreement and had taken the house as a group of friends who already knew each other. They did not impact adversely on the neighbourhood (17 Ash Grove, Leeds LS6 8BG (Appeal Reference APP/N4720C/O1/1071001)). In this case the Planning Inspectorate considered the Waltham Forest case (see below) and decided that had the Enforcement Notice been worded in a different way so as to have alleged a change from use as a dwelling house occupied by one person to a use as a dwelling house occupied by eight persons, he would have found, as a matter of fact and degree, that there had been no material change in the essential character of the use – this is the most favourable case for landlords.

The opposite view was taken, in another case in Leeds where two groups of seven students had taken a house in two successive years. They had also signed a joint tenancy agreement and knew each other beforehand. However, there was very considerable evidence of noise, disruption and bad behaviour on the part of one of these groups in particular. As a result of the adverse impact on the neighbourhood the planning inspector held that there had been a material change of use (65 St Michael’s Lane, Headingley, Leeds LS6). The main difference between these two cases in Leeds was the behaviour of the occupiers. There was no real difference as regards their relationship with each other in the way in which they occupied the property, other than their conduct so far as outsiders was concerned.

Another case in Southampton concerned a house occupied by eight students, each of whom had their own study bedroom with a lock on its door. There was a shared kitchen and sitting room. They had all signed a single tenancy agreement and most of them had known each other before they moved in. The main issue concerned the difference between eight rather than six people referred to in the former Class C3 use class. Before that use had started the house had been occupied by a couple who had let rooms to up to five other people. The Inspector held that occupation by eight students was not materially different from that which resulted from occupation by six (48 Alma Road, Portswood, Southampton (Appeal Reference 98/1010352)). It should be noted this case was clearly decided against the background of the old wording of Class C3.

In one case from Bolton, involving the use of an end terrace house as an HMO, the inspector considered that noise was little different to that which a typical family might make. Neighbours claimed there was disturbance from televisions, people moving around and doors slamming, which could go into the evening.

The inspector thought that a house occupied by a family might have bedrooms occupied by teenagers with televisions and music players. Any occupier could be inconsiderate at times.

There was no evidence that occupiers of an HMO were necessarily more likely to be coming and going at unsocial hours than other kinds of occupier.

In the Secretary of State for Transport etc –v- Waltham Forest LBC [2002 EWCA Civ 330] the Court of Appeal dealt with a case where an application had been made for a Certificate of proposed lawfulness of an intended use. This is an advance clearance procedure. The property was a normal dwelling house and the proposed use was a dwelling house which provided residential accommodation for six people recovering from mental illness, plus one carer. The Inspector who heard an appeal did not enquire as to the actual of the property at the time but considered that use as a dwelling by a large family could, especially where there were children or elderly relatives, including an element of care. On appeal the Court of Appeal refused the lawful Use Certificate. In essence the Court said that the relevant comparison was between the existing and proposed use. You could not introduce an intermediate stage of a change of use from the existing use to a notional use by a large family and then have a change of use from the notional use to the proposed use. In other words it applied before and after test as between the actual previous use and the new proposed use. This applies to the hypothetical situation of a proposed change of use rather than an actual change of use but this could be relevant under the new rules for deciding whether or not there has been a “material change of use”.

On the question of what is a material change of use some assistance may be derived from the case of North Devon District Council -v- First Secretary of State. This was a case concerning a small care home. Technically it did not qualify for Class C3 (the old version prior to amendment). It was within Class C2 because of non resident carers. They worked in shifts. This was a small home for up to three children in a semi detached house. The Court held that there was no material change of use because essentially the nature of the property was the same irrespective of the fact that prior to this use the property had been an ordinary family home. [As the Government Circular says, you have to look at the effect on the amenities of the area].

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