HMO landlords urged to know the difference between HMO licensing and planning
There is a big difference between HMO licensing and planning permission, warned Des Taylor of Landlord Licensing & Defence.
He said a client asked him about his local council, which insisted he get planning permission for his HMO in an Article 4 area, or obtain a Certificate of Lawful Use.
Taylor said this situation is becoming increasingly common, leaving landlords confused and sometimes councils refusing to issue licences.
He said: “Council licensing departments are increasingly making these planning-related demands on behalf of their colleagues.”
Landlords who receive the demands are frequently asking if the requests are legitimate.
Whether they are lies in a recent Upper Tribunal case, as Taylor added: “While not entirely new, the case established that licensing departments can restrict a licence based on planning requirements within an Article 4 area.”
For existing HMOs in Article 4 areas – where the automatic right to convert a residence into a small HMO has been removed by the council – obtaining a new licence can become more complicated.
Taylor said: “Licensing departments are increasingly requesting proof of planning permission or a Certificate of Lawful Use during the application process.
“This is essentially due diligence.
“The council wants to ensure HMOs comply with planning restrictions within Article 4 areas.”
However, landlords with established HMOs prior to the Article 4 implementation can demonstrate this for licensing purposes.
Taylor added: “While not legally mandatory, a certificate of lawfulness is similar to a PAT test certificate demanded for portable appliances. It’s a way for the council to ensure compliance.”
However, sadly, he said that most council planning departments will try their utmost to deny a Certificate of Lawful Use (CLU).
Landlords were therefore urged to avoid applying for CLU and use other methods that cannot be contested so easily by the council.
Taylor told landlords that they can prove established use with tenancy agreements and other supporting paperwork to those tenancies.
He said: “If you have agreements showing consistent HMO use before Article 4, that should suffice.
“Unfortunately, some licensing departments may resist accepting alternative evidence, and appealing a rejected licence or restricted licence to the First-tier Tribunal can be costly and time-consuming.”
He added: “Landlords with documented proof of pre-Article 4 HMO use shouldn’t face licensing issues.
“But if the licensing department protests or refuses to accept the evidence, professional advice is crucial.”
Having a ‘refusal to licence’ on your record would be a problem, as landlords have to declare this on every licence application afterwards.
Councils could even use it to get landlords declared as ‘Not fit and Proper’.
