lodgers and planning change of planning say change of use help please??

[rocco]

we have for nearly 3 years now had two lodgers in our home which is a 2 bedroom house we have our bedroom in the downstairs what used to be a dining room
both my lodgers had a bedroom with ensuite we also have a downstairs bathroom the only communal areas are the living room and kitchen
The planning dept say we need to pay £350.00 for a change of use something to do with having two lodgers if we had one it would not apply
could anyone give any further advice on this please
Thank you in advance Amanda

[Planner]

Three or more unrelated people living in a single household make the property a use class C4 House in Multiple occupation rather than the more 'normal' use class C3 household.

A change of use has indeed taken place.

[schocca]

Assuming this post is about a property in England/Wales, then your council has it wrong in more than one way (and I was talking with CLG about this exact scenario last year).

The two legal instruments you need are here
2004 Housing Act:
http://www.legislation.gov.uk/ukpga/2004/34/contents
Specifically Schedule 14 part 6 section c:
http://www.legislation.gov.uk/ukpga/2004/34/schedule/14

Part 6 is about buildings occupied by owners and section c is effectively about lodgers. Now section c details that there is a limit on how many "lodgers"/non-related people you can have living in a owner occupied house before it is deemed to be a HMO. The actual limit is mentioned in a separate SI here:
http://www.legislation.gov.uk/uksi/2006/373/contents/made

Section 6 part 2 states that a HMO is defined when you have more than two lodgers.

For clarity, I have posted the two relevant bits here:

Schedule 14 - Buildings that are not HMOs (2004 Housing Act) - Part 6:


Buildings occupied by owners
6(1)Any building which is occupied only by persons within the following paragraphs—E+W.
(a)one or more persons who have, whether in the whole or any part of it, either the freehold estate or a leasehold interest granted for a term of more than 21 years;.
(b)any member of the household of such a person or persons;.
(c)no more than such number of other persons as is specified for the purposes of this paragraph in regulations made by the appropriate national authority.
Part c is then defined here:

The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006
Part 6

Buildings that are not HMOs for the purposes of the Act (excluding Part 1)
6.—(1) A building is of a description specified for the purposes of paragraph 3 of Schedule 14 to the Act (buildings regulated otherwise than under the Act which are not HMOs for purposes of the Act (excluding Part 1)) where its occupation is regulated by or under any of the enactments listed in Schedule 1.

(2) The number of persons specified for the purposes of paragraph 6(1)(c) of Schedule 14 to the Act is two.

This is hard to read (and find), but I read this as "more than two lodgers in an owner occupied house would make the house a HMO".

I'll post further on the other mistakes that the council has made (which also make this a non-issue).

Note - ALL this is only valid for England and Wales....

[schocca]

The next reason why the council has it wrong:

The planning "issues" are related to three SIs that came out last year:

SI 1 - 6th April 2010 (under the old Lab Government): http://www.legislation.gov.uk/uksi/2010/653/made

This defined that a HMO (as defined under the 2004 Housing Act) has a different Use Class vs a regular house dwelling. With this SI, you would need planning permission to change use classes. (this changed again in Oct and I'll come to that later).

Importantly for you, as you stated that you had already have two lodgers for the last three years, then this planning permission is not required as either your house is an existing HMO or it's not, but you are not changing use as you already had the use in force before the legal change came in. I.e. the legislation only affects changes post 6th April 2010, but has no impact on existing HMOs in force before that date (they are grandfathered into the relevant use class by default).

Ok, now this caused problems for councils that had no issues with HMOs (and there are quite a few in this category), so the coalition Gov made a change to state that changes between HMO/non-HMO use classes would not need permission unless a council really needs this:
SI 2 - 1st October 2010 - http://www.legislation.gov.uk/uksi/2010/2134/pdfs/uksi_20102134_en.pdf
- This allowed dwellings to move between HMO/non-HMO use classes without planning consent.

and SI 3 - 1st October 2010 - http://www.legislation.gov.uk/uksi/2010/2135/pdfs/uksi_20102135_en.pdf
- This allows a council to remove this right and control via an Article 4 direction.

So what does all this mean (in my opinion)?

If you have 2 or less lodgers, you don't have a HMO (so no issue)
Even if it is a HMO, because you have been doing this before 6th April 2010, then you would be "grandfathered" into the correct use class and would again not need planning permission (as you would already have this by default)
SIs 2 and 3 have made planning permission an optional requirement for councils - so again, no need for planning unless the council is proceeding with an Article 4 direction
All councils opting for an Article 4 direction to control HMOs are also giving 12 months notice of implementation (this is to prevent compensation claims). The earliest Article 4 is coming into force is in Dec 2011.
If a council DOES implement an Article 4 directive, then current legislation prevents a council charging a fee for planning applications required due to an article 4 restriction (this may change, but this is the current situation at present).