What is a HMO?
Local HMO Plans
Ten Point Plan
Leeds HMO Lobby
Use Classes Order
Taxation of HMOs
Students & Community
National HMO Lobby
Change of Use
in the Planning System
Introduction The National HMO Lobby is an association
of local community associations throughout the UK, concerned about
the impact of concentrations of houses in multiple occupation (HMOs)
on their communities. As such the Lobby was established with the
objective (among others) of lobbying for amendment of certain changes
of use in the planning system. The Lobby therefore welcomes the
Issues Paper How change of use is handled in the planning system
from Communities & Local Government (CLG). The Lobby hopes that
its experience will prove valuable to the government's discussion
of this topic.
0.1 The Lobby is interested in reviewing change of use legislation,
that is, the Use Classes Order (UCO) and the General Permitted Development
Order (GPDO). But it does consider that the government, in its enthusiasm
for deregulation, exaggerates the burden imposed by the Order. The
Issues Paper says, "We want to remove unnecessary barriers"
(paragraph 8, page 4), and "This can be a burden on business
in terms of time and cost" (paragraph 9, page 4). But application
for planning permission need be neither expensive nor onerous: straightforward
applications can be turned round promptly, and fees for most planning
applications are only £335 or less. And if the development
is in accord with national and local policies, then approval need
not be problematic (in fact, over 80% of planning applications are
approved). After all, the legislation simply requires that permission
is sought, and carries no implication of refusal. As the Issues
Paper notes, any change of use "will be determined in the first
instance by the local planning authority" (paragraph 2, note
2, page 3). The local planning authority (LPA) will develop policies
in order to guide its implementation of the legislation. The UCO
simply requires of developers the courtesy of notifying their neighbours
of their intentions.
0.2 The Issues Paper states, "We want to make sure that new
development can take place to contribute to the delivery of strong
and vibrant communities" (paragraph 8, page 4). This is precisely
the aim of the Lobby. Its concern was that development was taking
place which actually undermined strong and vibrant communities (because
change of use to HMO meant replacing a stable population, on which
strong communities depend, by a transient population). The Lobby
sought amendment of the UCO precisely in order to ensure "balance
between supporting growth and ensuring communities have the opportunity
to influence their environment" (paragraph 8, page 4).
0.3 Accordingly, when it was established in 2000, the Lobby's stated
objective was 'to lobby for planning control of HMOs', and to this
end 'the Lobby has advocated revision of the various Use Class Orders
in the UK.' The Lobby responded to the review of the Use Classes
Order in England begun in 2001, culminating in the amendment of
2005 (without success). Meanwhile, the Lobby lobbied successive
Ministers, until a consultation was promised in 2007. In 2008, ECOTEC
published Evidence Gathering, and then in 2009, CLG held
a consultation on Houses in Multiple Occupation and possible
planning responses. The Lobby finally achieved its objective
when Statutory Instrument 2010 653 came into force on 6 April 2010,
introducing a new use class C4 for HMOs.
0.4 The Issues Paper incorrectly states in paragraph 14 (page 5)
"In October 2010 this was in effect overturned and the legislation
was amended allowing permitted development rights for changes from
class C3 to C4." [Incidentally, this permitted development
is omitted in Annex B.] In fact, the government accepted and retained
the amended UCO. It was the GPDO which was amended, and the Minister
made it clear that the intention was to enable LPAs to use Article
4 Directions to implement the UCO locally. Most of the Core Cities
are doing so (Bristol, Leeds, Manchester, Newcastle, Nottingham,
Sheffield), as well as many other large and small towns (including
Bath, Bournemouth, Canterbury, Exeter, Hatfield, Leamington Spa,
Loughborough, Margate, Milton Keynes, Northampton, Oxford, Ormskirk,
Plymouth, Preston, Southampton, York).
0.5 The Lobby considers that the final outcome of changes to legislation
on HMOs (though far too late) provides a model for how change of
use may be handled in the planning system.
1 Should material change of use continue to be considered
as 'development' and handled through the planning system? If not
what alternative approach might be used?
1.1 The Issues Paper does not make clear (to the non-professional)
what is meant by 'development'. The Paper seems to indicate that
development includes new structures and/or new functions (one may
or may not entail the other), which impact on the character and/or
amenity of the locality [note]. In this tight little island,
it is clear that many new uses will need to take place on land or
in buildings already in use, rather than on 'virgin [green] soil'.
In this case, it seems unavoidable that much development will always
entail change of use. In this context, the Lobby considers that
the existing UCO achieves the right balance in respect of the impact
of such changes on local character and amenity.
1.2 The planning system was devised in order to manage development.
Any alternative would have to undertake the same role. In the absence
of any proposal for another approach, it is difficult to see any
advantage in introducing an alternative.
1.3 In both cases, examples of alternative systems in other countries
could be helpful.
2 Is the Use Classes Order an effective deregulatory tool
to simplify the approach to managing change of use nationally in
the planning system? If not, do you have views on what an alternative
deregulatory approach to managing change of use might look like?
2.1 If development comprises change of use (among other things),
then a simplified system of what counts as distinct usage seems
a useful compromise. On the one hand, requiring planning permission
for every conceivable change of use would impose a huge burden on
the planning system and therefore on any development at all. On
the other hand, a complete free-for-all would leave local communities
utterly vulnerable to exploitation. Again, if alternatives are to
be considered, it would be helpful to know what these might be,
with examples from other systems.
3 The Use Classes Order and associated permitted development
rights currently are a national regime for changes of use without
planning applications. However, they can be extended locally to
meet local needs through Local Development Orders (and in future,
through Neighbourhood Development Orders). Is this model effective
and is it sufficiently flexible to meet most circumstances?
3.1 The present model comprises a national regime of use classes,
together with local flexibility to deploy this regime. It "offers
a large degree of consistency nationally with local variation only
where there are specific local issues" (Question 3 note, page
9). In principle, this is an effective model. For instance,
the existence of class C4 enables HMOs to be identified as a distinct
land use; the use of Article 4 Directions enables this classification
to be activated locally, where necessary.
3.2 Having said that, whether in practice the model is
sufficiently flexible is another matter altogether. For instance,
on the one hand, the introduction of the new use class C4 was the
outcome of a long and laborious process. Successive Housing Acts
(1985, 1996, 2004) recognised the emerging significance of HMOs,
consequent upon social changes like developing benefit dependency,
expanding higher education, increasing seasonal and migrant labour,
declining housing availability, and so on. But the impact of HMOs
on the character and amenity of neighbourhoods was not finally recognised
in the planning system until the UCO amendment of 2010. Again, on
the other hand, the use of Article 4 Directions to implement class
C4 (removing permitted development rights for change of use from
class C3) is also long and laborious. In order to avoid compensation
claims, LPAs are required to give lengthy notice of the Direction,
and to carry out a consultation, both of which mitigate against
flexibility and are resource-intensive (as the LPAs noted in 0.3
above have experienced). Both the national regime and local implementation
therefore need closer consideration (see 4 and 5 below respectively).
3.3 Localised regimes of use classes (as suggested in the Issues
Paper, page 9) are impractical: they would entail each LPA re-inventing
the wheel; and they would remove consistency nationally between
one LPA and another. They would place greater burdens on development
and the planning system, both locally and nationally.
3.4 Whilst the regime should be national, flexibility
should be local. If decision-making is to be local, as is promised
in the Localism Bill, this is where flexibility should be invoked.
It is far easier to introduce permitted development rights than
to remove them. If national deregulation gives an increase in permitted
development rights, this undermines local decision-making, and obliges
LPAs to reinstate regulation through cumbersome Article 4 Directions.
However, if the national regime assumes permission is necessary
for change of use, LPAs can much more easily introduce permitted
development through Local Development Orders (see also 5 below).
4 Do you think that the current classes of use in the Use
Classes Order are still appropriate?
4.1 The current classes of use in the UCO are still necessary. Whether
they are sufficient is another matter. As the Issues Paper points
out, "there are other factors, such as more people working
from home, possible temporary uses of buildings, changes in shopping
habits and new industries which need to be better reflected"
(paragraph 15, page 5) and "there have been many changes in
how we live and work, the nature of new businesses being created
and the growth of leisure interests. This is reflected in public
behaviour, tolerance and expectation which perhaps should also feed
through into the planning system" (Question 4 note, page 9).
In consequence, the UCO has "changed over time … It is
almost 10 years since the last substantial review of the Use Classes
Order" (Question 4 note, page 9). Two points need to be made.
4.2 The Issues Paper refers to changes that have been made in the
A classes, the B classes and the C classes. It refers to future
possible changes, "such as children's homes, care in the community
establishments and betting shops" (Question 5 note, page 10).
Two tendencies are evident. "The A classes have been separated
out further to take greater account of the land use impact of hot
food takeaways and drinking establishments" (Question 4 note,
page 9), and "in April 2010 the Government introduced a separate
use class for houses in multiple occupation" (paragraph 14,
page 5). Here, the number of use classes is actually increased.
On the other hand, two recent consultations on change of use to
schools and to residential accommodation (paragraph 14, page 5),
while not removing use classes, do propose to remove their application
by extending permitted development rights [though such rights for
schools have not been adopted]. The former examples both originate
from local grass-roots concerns (the Big Society in action, in fact).
The latter arise from national government policy. Many local communities,
including those represented by the National HMO Lobby, would like
to see a more fine-grained UCO, which allowed more subtle distinctions
between the uses of land and buildings.
4.3 As the Issues Paper notes, "it is almost 10 years since
the last substantial review of the approach to change of use"
(paragraph 15, page 5). However, social change can take place very
rapidly (the proliferation of HMOs in the last decade is a case
in point). Rather than leave consideration of the UCO to ad
hoc circumstances (and the campaigning efforts of local communities),
there is a case to be made for periodic review. The UCO could be
subject to appraisal, say, every five years, to ensure that it remains
fit for purpose in a changing society. (Alternatively, it could
be the subject of a rolling review, each main class, A, B, C, D
and sui generis uses, being appraised in successive years.)
Changes need not be made, but all interested parties should be offered
an opportunity to recommend amendments to the UCO.
5 The current regime seeks to secure a balance between
deregulation and protecting the citizen. Has the right balance been
struck or should there be more deregulation than currently allowed
through the Use Classes Order and permitted development rights?
5.1 As noted above (3.4) if there is to be deregulation, this should
be at the local level, not the national. As noted under Question
10 (page 12) "this Government places great importance on the
involvement of the neighbourhood in plan making at the neighbourhood
and local levels." This emphasis is evident in the Localism
Bill, currently progressing through Parliament. This Bill sets great
store by Neighbourhood Plans. The Lobby is very concerned that recent
consultations on change of use, relating to schools and to residential
accommodation (noted at 4.2 above, and in paragraph 14, page 5),
actually undermine local autonomy. If the current regime "seeks
to secure a balance between deregulation and protecting the citizen",
then the Lobby fears that there is a tendency towards loss of balance.
In the interests of localism then, deregulation should take place,
not at the national level, but at the local level, through greater
encouragement by national government of the use by local government
of Local Development Orders.
5.2 The government has argued that Article 4 Directions may be used
by LPAs to remove permitted development rights, and reinstate requirements
for planning permission - as in the case of class C4, HMOs. This
approach however has a number of disadvantages. First of all, it
is inefficient: it requires (a) the instatement of a use class (by
amending the national UCO), (b) the introduction of permitted development
for change of use to this class (by amending the national GPDO),
and (c) the subsequent removal of this permitted development (by
introducing a local Article 4 Direction). It would be simpler to
introduce (a) a new use class, and (b) a Local Development Order,
providing for permitted development. Secondly, it is costly to the
LPA: currently, planning applications required by an Article 4 Direction
are free; the costs to the LPA are not recouped from fees (hopefully,
the recent consultation on planning fees will remove this anomaly).
Thirdly, in order to retain local autonomy, LPAs would have to introduce
Directions 'on spec', just in case a developer wished to take advantage
of the permitted development - again, an inefficient process. Finally,
in order to avoid compensation claims, a LPA has to give twelve
months notice of a Direction - which immediately removes its effectiveness
as a development control mechanism. If Article 4 Directions are
to be used, LPAs should be able to announce that they intend to
introduce a Direction whilst the proposed permitted development
is under consultation, with a view to the Direction taking effect
at the same time as the GPDO amendment comes into force.
6 Does the current operation of the Use Classes Order go
far enough to remove inappropriate barriers to growth and allow
for potential for changes of use that boost growth?
6.1 The Lobby is disappointed that this Question is so contrary
in spirit to the Background discussion in the Issues Paper. The
Paper states at paragraph 8, "We want to make sure that new
development can take place to contribute to the delivery of strong
and vibrant communities" (page 4). But the notes to Question
6 refer solely to "supporting economic growth" (page 10),
without qualification. Growth of all sorts can take place which
is actually profoundly harmful to local communities. The development
of concentrations of HMOs in university towns, in coastal towns,
in market towns, has seen huge growth in the private rented sector.
But this has been at the expense of (a) the availability of long-term
family housing, and (b) of the cohesion of local communities. It
was the weakness of the UCO which led to such negative impacts on
local communities. This is another reason why deregulation should
be at the discretion of LPAs.
6.2 Furthermore, excessive slackening of the UCO control mechanism
could lead to greater burdens. Increases in LPA workloads are noted
below (9.2). But greater burdens would also be manifest in the burden
of uncertainty for developers and considerable potential burdens
on communities from less fettered developments (such as those leading
to the formation of the National HMO lobby, noted above).
7 How should ancillary uses be treated within the Use Classes
7.1 In the interests of local self-determination, as promised by
the Localism Bill, the Lobby urges a circumspect approach to ancillary
8 Are the current permitted development rights relating
to the temporary use still appropriate? If not, how do you think
they should be amended?
8.1 Again, in the interest of local self-determination, control
of permitted development rights for the temporary use of land should
be delegated to LPAs.
9 Should change of use of buildings be allowed on a 'temporary'
basis without the need for a planning application?
9.1 Again, in the interest of local self-determination, permitted
development rights for the temporary use of buildings should be
at the discretion of LPAs, through Local Development Orders.
9.2 The notes to Question 9 raise the issue of workload for the
LPA. The Lobby is in principle in support of local self-determination.
But in practice this entails a significant workload across the board
for LPAs, not just in the enforcement of the temporary use of buildings.
This fact should be recognised by national government in its support
10 In addition, the review team would welcome any further
views or evidence on how the current Use Classes Order and associated
permitted development regime is working.
10.1 The notes to Question 10 indicate how intimately change of
use in particular, and the planning system in general, are implicated
in the whole life of society. Any changes therefore should be cautious
- small-scale, incremental, and widely consulted. In fact, any revision
to the UCO or GPDO should continue to carry forward the basic principles
underlying the British town planning system and avoid the ills that
brought it into being in the 'thirties and 'forties.
Conclusion The National HMO Lobby welcomes the
opportunity of the government's Issues Paper on How change of
use is handled in the planning system to contribute to review
of the Use Classes Order. The Lobby wishes to make five main points
about change of use in the planning system.
11.1 The Lobby welcomes the opportunity to review change of use
in the planning system, especially the workings of the Use Classes
Order and the General Permitted Development Order, and it considers
that its own experience of amendments to both, relating to HMOs,
provides valuable lessons.
11.2 The Lobby supports the aim of encouraging sustainable development,
but emphasises that sustainability involves the communities within
which any development takes place. In the spirit of the Localism
Bill, therefore, it is essential that local communities retain powers
to conserve their long-term cohesion and sustainability.
11.3 In this spirit of localism, national legislation should provide
a menu of use classes, available for application locally. To recognise
diversity of usage, this menu should be more fine-grained than at
present (compare the recent amplification of both the A Classes
and the C Classes). And to keep abreast of changing usage, it should
be subject to periodic review, not reliant on occasional last-resort
11.4 And again in the spirit of localism, local legislation should
be able to adapt national provisions to reflect local needs. Local
Development Orders should be able to provide permitted development
rights, where required. At the same time, Article 4 Directions should
be able to remove permitted development rights, where required locally
(where these concern new use classes, LPAs should be able to introduce
Directions immediately, without risk of compensation claims, and
with appropriate fees).
11.5 Finally, the Lobby draws attention to the implications of localism
- that increased localism is very desirable, but it is crucially
dependent on adequate local resources.
Dr Richard Tyler, National HMO Lobby, August 2011
Note: In fact, the Town & Country Planning Act 1990,
55, provides the following definition: "development"
means the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material
change in the use of any buildings or other land.
National HMO Lobby