HMO rules challenge renewed

As you are no doubt well aware, changes to the Use Classes Order made by the previous government placed Houses in Multiple Occupation in a new use class (C4), separate from single private dwelling houses in Class C3. However, the coalition government subsequently amended the General Permitted Development Order so that changes of use between Classes C3 and C4 are now permitted development. This change came into effect on 1st October 2010. As I pointed out when originally commenting on the announcement of this change (in June last year), if LPAs feel that the concentration of HMOs is a problem in particular areas, they can use their existing powers to make an Article 4 Direction. So, instead of a blanket requirement for planning permission for change of use to an HMO, this will now be a requirement only in those areas where LPAs have excluded this particular form of permitted development through an Article 4 Direction.

Several local planning authorities were deeply unhappy about this change, and I reported in October that three of them (Milton Keynes, Oxford and Newcastle) were seeking permission from the High Court to challenge the changes by way of an application for Judicial Review. Successful challenges to subordinate legislation are few and far between, but are not impossible. Nevertheless I was inclined to be sceptical of the chances of persuading the court to upset the new rules.

The first hurdle for these councils was to obtain the Court’s permission to proceed, and they initially fell at this first fence. However, they renewed their application in the High Court following its initial rejection on the papers, and after an oral hearing last week, Lindblom J has given permission for the application for judicial review to proceed. This does not give any indication as to the eventual outcome of this challenge, but it does indicate that the three authorities do at least have an arguable case.

I gather that the authorities do not believe that the availability of Article 4 directions gives them sufficient control over the situation. They claim that this will involve them in having to give 12 months’ notice to landlords and that they will face the risk of having to pay substantial compensation. They fear that the new rules will encourage a proliferation of HMOs, and they believe that this could be damaging to those neighbourhoods where significant numbers of HMOs are set up.

The legal basis for the High Court challenge is an alleged failure on the part of the government to consult local planning authorities properly prior to amending the GPDO. I still remain sceptical of the chances of this challenge succeeding, but we shall see. The substantive hearing is expected to take place before the end of April.

[Update: The High Court dismissed this challenge. Basically, the Court said that the consultation exercise carried out by the government was not unfair.]

© MARTIN H GOODALL