A dwellinghouse by any other name

Roderick Morton reports on a recent High Court case that examined the differences that arise when a property is a dwellinghouse and when it is being used as one.

Being a dwellinghouse and being used as a dwellinghouse are two different things. Some parts of the legislation applies to properties which are dwellinghouses (eg GPDO), other parts to properties which are used as a dwellinghouse (eg immunity for use as a single dwellinghouse); it is always necessary to look at the context. The Gravesham criteria are relevant to being a dwellinghouse but are not sufficient where use is the test.

The case of LB Brent v SSLUHC and Yehuda Rothchild [2022] EWHC 2051 (Admin), amongst other things, highlighted this.

In 2015, the owner of a terraced house in Brent sought prior approval to build a 6m extension claiming permitted development rights to do so. The extension was described as a dining/family room for a dwellinghouse. No objections were raised and the council confirmed that prior approval was therefore not required. The appellant’s company bought the property and, in 2016, built the extension. The appellant also converted the property to an HMO with ensuite bathrooms and a communal kitchen.

In 2019, after an investigation, the council issued an enforcement notice against the change of use to a mixed use of HMO and flats and construction of the extension. The appellant appealed. The council contended that the premises was a single planning unit, that two of the rooms were sufficiently self-contained to be flats and that the remainder was an HMO. There was, said the council, no PD right for the change of use and no PD right for the extension.

For various reasons, the inspector did not see any of the appellant’s submissions. Nevertheless, he allowed the appeal. He found that there were no flats, only a C4 HMO. (The judgment records that the “flat” rooms had lockable doors, an ensuite shower and toilet, a sink, a fridge and a microwave. The inspector held that all of the residents nevertheless used the communal kitchen). He found that the extension was PD when constructed, holding that, in confirming that prior approval was not required, the council must have accepted that the property was a dwellinghouse at the time. He also said that an HMO is a dwellinghouse for GPDO purposes. 

The inspector’s finding that the rooms were not flats was not challenged. The decision on the extension was challenged by the council on three grounds. Only one is of general interest. The council said that it was necessary for the inspector to have considered whether the property was a dwellinghouse not just at the time of the prior approval decision in 2015 but also later when construction began in 2016. While the inspector had concluded that it was in C3 or C4 use in 2016, that was not enough, said the council. The inspector was wrong to decide that an HMO was automatically a dwellinghouse. Some HMOs may be dwellinghouses but it was a matter of fact and degree and depended on whether the occupation was “akin to occupation by a single household”. The inspector therefore should have gone further and considered this second test. His failure to do so rendered the decision unsupportable.

PINS accepted that the inspector had erred on this point. The appellant, however, did not concede it and opted to continue to challenge the council’s appeal.

The appellant suggested that the GPDO rights applied to a building which was a single dwellinghouse, irrespective of whether it was used as such. Having concluded that use was C3 or C4 at the time, the inspector must have determined that it was a dwellinghouse because that is a fundamental part of the definition of C3 and C4 in the UCO; there was no need to consider the nature of the use further.

The court sided with the appellant. The GPDO grants permission to extend “a dwellinghouse”. There is no definition of a dwellinghouse (though Gravesham applies). There is no requirement in the GPDO that the dwellinghouse is used as a dwellinghouse; it is enough that it is a dwellinghouse. Use classes C3 and C4 both concern use of “dwellinghouses”. So there is nothing in the UCO that helps with the question of what is a dwellinghouse for the purposes of the GPDO and it is wrong to import distinctions from the UCO into the GPDO requirements. 

The judge went further. A dwellinghouse may remain a dwellinghouse even though it is put to a number of different uses. Use Class C3 is not exhaustive of what may be considered a dwellinghouse; the very existence of C4 demonstrates that. There may be a change of use when a dwellinghouse used as a dwellinghouse becomes a dwellinghouse used as something else. But that does not change the fact that the dwellinghouse remains a dwellinghouse.

This decision will have far reaching results. There is no statutory definition of what a dwellinghouse is, only what it isn’t. The GPDO excludes buildings with flats from being dwellinghouses but that’s all. This case seems to confirm that, excluding flats, anything meeting the Gravesham test is a dwellinghouse for GPDO purposes. A C4 HMO is now certainly a dwellinghouse. A Sui Generis HMO may also now be a dwellinghouse as it would ordinarily meet the Gravesham test. But does an office building with a bed, cooker and shower also now have Class A PD rights? It meets the Gravesham test after all. To be fair to the judge, his conclusion is unimpeachable; it is the GPDO itself that now seems deficient.

There is one silver lining. A typical flat conversion process would be for the developer to obtain a number of Class A PD extension decisions while the house is nominally a single dwelling, later building them all out and converting to flats at the same time. Traditionally, as use is said not to cease until the flats are occupied, enforcement against the extensions is difficult because the developer will claim continued single dwellinghouse use until that time. This case is a reminder that use is irrelevant; if the building becomes flatted before or at the same time as the extensions, it is not a dwellinghouse and there is no PD.

Conversely, where the conversion is to HMO rather than flats, enforcement becomes rather more difficult as a result of this case. When the distinction between a flat and an HMO can be as little as a single microwave oven, it is a bizarre situation.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.