Council loses High Court appeal of inspector's HMO decision

Welwyn Hatfield Borough Council has lost an appeal to the High Court over a planning inspector’s decisions on a dispute about the nature of a ‘dwelling house’.

Timothy Mould KC, sitting as a deputy High Court judge, said the council’s appeal concerned the Secretary of State for Levelling Up, Housing and Communities and house owner Ismail Kabala. It was brought under section 289 of the Town and Country Planning Act 1990. The council served an enforcement notice in July 2019 over a two-storey detached house in Hatfield. Conversion works meant it comprised four bedsitting rooms, each self-contained with its own kitchen and bathroom, plus two further bedrooms each with access to a bathroom on the first floor and a kitchen on the ground floor, plus a lounge which was accessible to all residents. Welwyn Hatfield issued the notice on the basis that these arrangements had resulted in the sub-division of the house into five self-contained flats, in breach of planning control.

Mr Kabala challenged this on appeal as factually incorrect as there were four self-contained units and two bedrooms. The inspector visited and concluded it was a house in multiple occupation for not more than six residents, and so fell within the scope of Use Class C4 in Schedule 1 to the Town and Country Planning (Use Classes Order) 1987 and therefore planning control had not been breached. He, therefore, quashed the notice.

Welwyn Hatfield argued the inspector erred in law having wrongly assumed the house continued to be a single dwelling house, but in multiple occupation. The council said the house now had four self-contained bedsitting rooms and the inspector ought to have asked whether it had been sub-divided to form two or more separate dwelling houses. Alternatively, if the inspector had addressed that question, he had failed properly to explain how he concluded the house continued to be used as a single dwelling house. The notice had required Mr Kabala to cease the use of the dwellinghouse as self-contained units, remove all but one kitchen, remove all internal partitions that enabled its sub-division and remove materials from the works involved.

Mr Mould said in his judgment: “Both parties to the appeal against the [notice] recognised that the issue between them was whether, following the internal conversion works, the house remained in use as a single dwellinghouse in multiple occupation or had been sub-divided to form multiple dwellinghouses. “In his written representations, [Mr Kabala] contended that the house was now in use as a small HMO. “In its written representations in response, the [council] said that the fundamental issue between the parties was whether following the conversion works, the building was in use as self-contained flats or was in use as an HMO.”

The deputy judge continued: “Whether the four self-contained units, the bedsits, were being used as single dwellinghouses was a question of fact and degree for the inspector to determine on the basis of the evidence before him, including what he observed during his site visit.” He said the law meant it was in principle possible for a house to remain a single dwellinghouse under Use Class C4, even with a mixture of self-contained and shared residential accommodation. “It is for the decision maker to judge on the facts of the given case whether such a building remains in use as a single dwellinghouse; or whether the provision of self-contained units of residential accommodation within that building has resulted in its sub-division into two or more separate dwellinghouses, as the Appellant alleged had occurred in the present case,” Mr Mould said.

He rejected Welwyn Hatfield’s argument that the inspector failed to give adequate reason for his decision. “The inspector had acknowledged that, following the conversion works, parts of the building now formed self-contained units,” Mr Mould said. “Nevertheless, he referred also to the existence of communal facilities which were accessible to all occupiers of the house. In the light of those matters, I see no particular difficulty in understanding how and why he came to the conclusion that he did.”

Mr Mould concluded the inspector did not make the error of law alleged by the council but noted the latter’s concern that the inspector's conclusion would effectively prevent it from issuing a further enforcement notice. He said the council; was not bound by the inspector's conclusion and if minded to issue a further enforcement notice could “decide for itself how best to describe the alleged breach of planning control, taking account of the evidence that is available to it for that purpose. “No doubt the [council] will sensibly have the inspector's reasoning, and his conclusion well in mind; but it will be in a position to take account of any further, relevant evidence which may inform its own judgement of the correct description of the alleged breach, should it consider that further enforcement action is merited”.

Mark Smulian is a freelance journalist specialising in local government, law, travel, transport, housing, construction and planning.