Welwyn Hatfield Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anor

A building containing both self-contained and shared residential accommodation may remain a single dwellinghouse in use as a small house in multiple occupation within Use Class C4. The question is one of fact and degree. The decision-maker must consider the physical state of the premises and their actual, intended or attempted use, including whether communal facilities remain available to all occupiers. The existence of self-contained units does not, by itself, establish subdivision into separate dwellinghouses. An inspector’s decision is read flexibly, but must explain the conclusions reached on the principal controversial issues and disclose no substantial doubt about legal error.

The Council appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision allowing an appeal against an enforcement notice. The notice alleged the unauthorised subdivision of a dwellinghouse into five self-contained flats.

The property contained four self-contained bedsits and two bedrooms with access to shared facilities. The inspector concluded that the use was a house in multiple occupation for not more than six residents within Use Class C4, and quashed the notice because correction would cause injustice to the Council. The central issue was whether the inspector had failed to decide whether the building had become multiple dwellinghouses.

1. Appeal dismissed. The inspector had not erred in law and was entitled to conclude that the breach was best described as a change of use to a house in multiple occupation for not more than six residents within Use Class C4.
2. Whether self-contained residential units are being used as separate dwellinghouses is a question of fact and degree. The decision-maker must apply the legal meaning of dwellinghouse, including its ability to afford the facilities required for day-to-day private domestic existence. The physical state of the premises and their actual, intended or attempted use are relevant.
3. The definition of an HMO in section 254 of the Housing Act 2004 includes the converted building test in section 254(4). The Town and Country Planning (Use Classes) Order 1987 does not exclude a converted-building HMO from Use Class C4. A building may therefore remain a single dwellinghouse within Use Class C4 despite containing a mixture of self-contained and shared accommodation.
4. The inspector had considered, rather than assumed away, the subdivision issue. His findings that communal facilities were accessible to all occupiers, including those occupying the bedsits, were capable of supporting the conclusion that the building remained one dwellinghouse in multiple occupation. His reasons were intelligible and adequate on a fair reading.
5. The inspector was entitled to refuse to correct the enforcement notice under section 176(1) of the Town and Country Planning Act 1990, because use as an HMO was significantly different from five flats and correction could disadvantage the Council on the planning merits. The Council remained able to consider further enforcement action in light of any further evidence. The appeal was dismissed.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 26 February 2020. Permission to appeal was granted by a Deputy High Court Judge on 17 March 2022. The Planning Court dismissed the appeal.