If you are a landlord of a family-sized rental property, what happens if you switch your tenant to sharers? Roy Speer and Michael Dade give an update on Article 4 Directions.
Roy Speer and Michael Dade are planning consultants with particular expertise in self-build and advising landlords. Their articles and anecdotes can be found regularly in the Residential Landlords’ Association (RLA)’s bi-monthly member magazine: Residential Property Investor (RPI).
Just over three years ago, everything changed for landlords of properties that could equally be rented by families or small groups of sharers. In a university town, for example, a landlord might let a property one year to a lecturer’s family, and the next to a group of students.
However, depending on where the property is, the decision to swap between tenant types may no longer be that simple.
Here is a brief recap: in October 2010 the Government amended the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 1995 to introduce a new Use Class A for small houses in multiple occupation (HOs) and to allow changes of use between C3 dwelling house use and C4 house in HMO use as permitted development which does not require planning permission.
Class C3 use includes occupation by a family, of up to six people living as one household receiving care in relation to the private sector, and up to six people living as one household.
Class C4 includes houses or flats which are occupied as a main residence by between three and six unrelated people who share basic amenities such as communal kitchen and bathroom areas.
While the Government gives the right across the board, councils have the power to restrict this by putting in place an Article 4 direction.
Compensation can be paid where councils remove a permitted development right by this means and then refuse a planning application for that type of development. The legislation enables the council to avoid this by delaying the imposition of the Article 4 direction for a year.
Many councils have made Article 4 directions restricting small HMO use, and continue to do so.
After the introduction of a direction, such a change of use requires express planning permission.
Applications for change from single dwelling to small HMO use are judged against national and local planning policy and may well be refused.
In January 2011, Leeds City Council resolved to introduce a non-immediate Article 4 direction to avoid paying significant compensation.
The direction came into force on February 10, 2012, and covers a large proportion of the city.
The council considered that high concentrations of HMOs can result in a number of “harmful impacts” including:
- Anti-social behaviour, noise and nuisance
- Imbalanced and unsustainable communities
- Negative impacts on the physical environment and streetscape
- Pressures on parking
- Increased crime
- Growth in the private rented sector at the expense of owner occupation
- Pressure on local community facilities
- Restructuring of retail, commercial services and recreational facilities to suit the lifestyles of the predominant population.
The areas covered by the direction were either identified as suffering from some or all of the harmful impacts or likely to suffer encroachment of HMO concentrations because of their proximity to areas of existing high concentrations.
The council proposes to introduce a new local planning policy and a new supplementary planning document to assist in deciding planning applications.
An Article 4 direction does not rule out changes of use and it is still open to landlords to apply for planning permission.
Some planning applications have been made in the part of Leeds affected by the direction.
Refusal and approval
One concerned a three-bedroom end of terrace house which was refused permission in October 2012. There was no objection by the highway authority, despite local opposition on parking grounds, but the council referred to two appeals for similar schemes at other properties which had been turned down.
Two reasons were given for refusing the application. First, HMO use would have been an unacceptable intensification, affecting the amenity of local residents through increased noise and disturbance and comings and goings.
Second, the proposed change would have resulted in the loss of a house suitable for family occupation in an area overdominated by flats and student housing, with a consequent impact on the vibrancy and sustainability of the community.
In contrast, an application on a Victorian four-bed terrace house was approved in September 2012: the council found there was no evidence of a concentration of HMOs in the surrounding streets.
The house was not a back-to-back dwelling, it was over the minimum 100 square metres referred to in the council’s current planning policy, and the number of bed spaces and the configuration of rooms would remain the same.
Bristol City Council was an early adopter of HMO Article 4 directions. It has made several non-immediate directions which came into effect between December 2011 and October 2012 covering a number of wards.
The intention was to deliver an appropriate balance between support for the private rented sector and legitimate planning aims to protect residential amenity and to create or maintain more mixed and balanced communities.
The council identified a number of the city’s central wards where concentrations of HMOs were present.
The problems it perceived were:
- HMO concentrations having a negative impact on residential amenity and character
- Housing mix issues including household and housing size/tenure imbalances
- Further changes of use would undermine objectives to protect residential amenity and character and to create or maintain mixed communities
- Use of the permitted development right would prevent residents affected by the preceding issues having an opportunity to comment on proposals in their community.
A number of the council’s planning documents contain relevant policies, including its 1997 local plan.
These allow the conversion of existing buildings to non self-contained bedsitting rooms or shared accommodation, provided that the residential character of the area would not be harmed as a result of unacceptable levels of activity, vehicle manoeuvring and car parking.
Effect on neighbours
As in Leeds, planning applications have been made in the areas of Bristol covered by the directions.
An HMO change of use proposal concerning a three-storey mid-terrace house was dismissed at appeal in November 2012.
The planning inspector thought the main issues were the effect on the mix and balances of accommodation in the area and the living conditions of neighbours, particularly noise and disturbance, and refuse storage. The area had the highest proportion of HMOs of any area in the city at 31 per cent.
The inspector said that granting permission would make it more difficult for the council to resist subsequent similar schemes, the cumulative impact of such development resulting in unacceptable harm to the balance of accommodation within the area.
A number of local residents objected and, in the inspector’s view, provided strong evidence that HMOs are likely to increase noise and disturbance emanating from the buildings and as a result of people coming home, including at unsocial times.
The inspector was also not convinced that refuse storage bins could be placed out of sight in the space available at the front or rear. This added up to a significant adverse impact on the living conditions of neighbours.
In another case, permission was given at a large semi-detached property, comprising a maisonette and ground-floor flat, earlier in the year. The area had only the sixth highest concentration of HMOs in the city, at 9.6 per cent of the housing stock, and the council did not consider it would create an imbalance of housing in the area or harm the mix and balance of the community.
The maisonette did not have access to the rear garden, had no parking and was close to a busy junction, and so was not considered suitable for a family, leaving students or young professionals as the most likely occupiers.
A housing survey had shown a low number of complaints about HMOs in this area and the property was in a location where there was already a high level of general activity.
It was considered that the amount of activity associated with HMO use would be comparable to the existing single dwelling use and would not harm the amenity of local residents or of future occupiers of the property.
The council accepted that the front garden had adequate space for refuse storage and, being within walking distance of facilities and public transport, the lack of off-street parking would not be a problem.
Councils continue to use Article 4 directions to maintain control of changes of use to HMO. Some authorities have set out planning policies which lay down maximum numbers for HMOs in a street or defined area.
However, where a case can be made that over-concentration would not result in a particular location, that neighbours would not be affected, and practicalities such as bin storage and parking would not pose problems, planning permissions can still be obtained.