THE LONDON BOROUGH OF BRENT v SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES & Anor

A building may remain a dwellinghouse while being used in more than one way. An HMO within Use Class C4 is, by definition, the use of a dwellinghouse by not more than six residents, although some HMOs may be excluded because they are flats or buildings containing flats. The Gravesham test remains the relevant factual test for identifying a dwellinghouse. It is not necessary to add a requirement that occupiers form, or resemble, a single household. A planning inspector is generally entitled to decide an appeal on the material placed before him. A site visit does not ordinarily require the inspector to investigate new issues which the parties have not raised and which would require further factual findings or planning judgment.

The London Borough of Brent appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision quashing an enforcement notice concerning a rear extension to a terraced house.

The inspector had found that the property was used as an HMO within Use Class C4 and that the extension benefited from permitted development rights under Class A of Part 1 of Schedule 2 to the GPDO 2015. Brent argued that the inspector had failed to determine whether the property was a dwellinghouse when the extension was built and whether the extension complied with the prior notification. The central issues were the meaning of dwellinghouse and the inspector’s obligation to investigate an unraised issue revealed by a later site visit.

1. Appeal dismissed. The inspector had made no error of law in allowing the enforcement appeal in respect of the extension.
2. The term dwellinghouse should ordinarily be construed consistently across the planning legislation and subordinate legislation. A dwellinghouse is a unit of residential accommodation providing the facilities needed for day-to-day private domestic existence. Whether a particular building is a dwellinghouse is a question of fact, which may require consideration of its actual use. The use need not be confined to occupation by one family or single household.
3. Use Class C4 applies only to the use of a dwellinghouse by not more than six residents as an HMO. Accordingly, a building properly found to be in C4 use is a dwellinghouse for the purposes of the GPDO, subject to the GPDO exclusion for flats and buildings containing flats. The requirement for occupation by a single household belongs to Use Class C3 and cannot be imported into the definition of dwellinghouse or Use Class C4. The inspector’s statement that an HMO is a dwellinghouse was too broad in isolation, but was harmless in context because he had found that the property contained no flats and was a dwellinghouse in C4 use.
4. The court distinguished the reasoning in Moore 2012. That decision concerned whether a change from C3 use to commercial holiday accommodation was a material change of use. It did not establish a supplementary single-household test for identifying a dwellinghouse.
5. Brent’s argument that the extension differed from the notified plans had not been raised before the inspector and was unsupported by evidence about the extension’s state when built. Determining it would have required factual findings and planning judgments, including whether variations fell outside the notification or constituted a breach of conditions or limitations. The inspector had discretion not to raise the issue himself and was entitled to decide the appeal on the parties’ material. It would also have been procedurally unfair to determine the issue without giving the other party an opportunity to respond.

The case was a statutory appeal to the High Court under section 289 of the Town and Country Planning Act 1990.

• Planning inspector: On 24 August 2021, allowed the enforcement appeal, finding no breach of planning control in relation to the alleged mixed use and the extension.
• High Court (Administrative Court): Permission to appeal was granted on 7 December 2021. The appeal was dismissed on 29 July 2022.