When is a dwellinghouse not a dwellinghouse?
A developer changed the use of a dwellinghouse to an HMO and a flat. The council enforced against it. The notice was quashed on ground (b) on the basis that the building was in fact in use as a single HMO. A subsequent enforcement notice alleged the conversion of two flats to a single HMO. At appeal, the inspector found that the HMO development was not immune from enforcement action as it had not continued for 10 years (as required by s171B(3)) and also because there may have been a second bite option under s171B(4). The inspector said nothing about whether s171B(2) TCPA 1990 (“change of use to use as a single dwellinghouse” - in its pre-LURA 4 year form) might apply; this was not surprising as the developer had conceded it did not.
At appeal to the High Court, the developer argued that s171B(2) applied because “use as a single dwellinghouse” in s171B(2) included use as an HMO because an HMO is a type of dwellinghouse.
The High Court found that the application of s171B(2) was a new point which was not raised before the inspector and could not now be raised at the High Court; the appeal was therefore dismissed. To that extent, the rest of the judgment is obiter and will carry less weight. This is a pity because the judge had some interesting things to say about whether s171B(2) applied.
The court went back to Hansard (the record of all things said in parliament) to look at the 1968 parliamentary debate around the introduction of the 4 year immunity rule for use as single dwellinghouse. The Minister who introduced the legislation made clear that it was not intended to capture “multi-occupation” as such uses could have “undesirable social as well as planning consequences”… “it would not be wise to subject such a breach to the constraint of the four year rule”.
This passage had been rejected as “not determinative” in the 1993 Court of Appeal case of Van Dyck[1] which found that the four year rule under s171B(2) applied to conversion of a building to several flats because each flat was a separate single dwelling. But the High Court in this case distinguished Van Dyck as being related to a different point (subdivision rather than multi-occupation). The court in this case found the 1968 Minister’s remarks were admissible as a guide to construction of s171B(2).
The appellant pointed to class L of the GPDO which describes options to convert C3 buildings to C4 use but which restricts multi-unit conversions in relation to “any building previously used as a single dwellinghouse falling within Class C4.” That wording rather suggests that a C4 HMO can be used as a single dwellinghouse. This, the court decided, could not be used as an aid to construction of s171B(2) because it was not contemporaneous with s171B(2), coming some 40 years afterwards.
The SoS pointed to Annex 2 to Circular 10/97 which excluded HMO use from use as a single dwellinghouse for s171B(2). This was admissible as guidance as to the government’s view, said the judge, but not definitive. The same could be said for the guidance in the Inspectors’ Training Manual.
In Brent[2], the court decided that a C4 HMO could be a dwellinghouse (“for the purposes of the GPDO or otherwise”); the only test was the Gravesham one. That is not surprising; Class C4 is defined as “use of a dwellinghouse…as a house in multiple occupation.”
But being a dwellinghouse and being used as a dwellinghouse are two separate tests. And the test in s171B(2) is use as a single dwellinghouse. It was this latter question that the rest of the decision considered.
As mentioned, Van Dyck was distinguished. The court in that case had been concerned with multiple flats, not a single unit in multiple occupation. It had been conceded in that case that the four year rule did not apply to multiple occupation.
The court made clear that the word “single” matters. It does not restrict the number of dwellinghouses (per Van Dyck) but it does require that each dwellinghouse is in use as a single dwellinghouse and not in multiple occupation.
As the court spelled out at paragraph 108
“For these reasons, the words “use as a single dwellinghouse” as they appear in section 171B(2) TCPA 1990 do not include an HMO, and therefore the Inspector did not err by referring to the “…10 year period required to achieve immunity…”
It remains to be seen whether this will be appealed. The judge was alive to the possibility, observing that, even if he was wrong on the interpretation, he would still have dismissed the appeal.
While the problem is time limited by LURA’s resetting all immunity periods to 10 years, there remain plenty of transitional provision cases which will be affected by this decision.
Where does this leave Van Dyck? Sadly, it remains good law despite running roughshod over planning units, ministerial statements and, in some cases, common sense. The judge spent no small effort distinguishing it in this ruling.
A more interesting question is where it leaves Class L. Class L permitted development still remains (the permission relates to a “building”, not a “dwellinghouse”. But the application of the limitations must now be in some doubt; how could any building now be said to have previously been in use as a “single dwellinghouse falling within Class C4” so as to engage that limitation? Does that mean multi-unit HMO conversions are now possible under Class L?
[1] Doncaster BC and Van Dyck v SSE [1993] 66 P&CR 61
[2] London Borough of Brent v SSLHC [2022] EWHC 2051
