Investors and landlords are among the groups who may find themselves affected on 16 June 2017 when a new planning rule comes into force in Falmouth.
The innocuous-sounding ‘Article 4 Direction’ will have a real effect on planning in the area (which includes the entirety of Falmouth with the exception of the Docks area).
What is an Article 4 Direction?
Planning law has long provided for different classes of use of land – covering everything from residential dwelling houses to corner shops to casinos. A new use-class of ‘House in Multiple Occupation’ (HMO) was introduced in 2010 and provided for a building to be occupied by between three and six individuals, living separately, who share basic amenities such as a bathroom or kitchen. A classic example is the shared-house or bedsit-type property favoured by students and many young people.
In certain circumstances the General Permitted Development Order (GPDO) allows for the change of use from a dwelling house to an HMO (and vice versa) without the requirement to apply for planning permission. It effectively granted automatic planning permission for that change of use under what is commonly referred to as ‘permitted development rights’.
Under the GPDO, power is reserved to the local planning authority, where it considers it necessary to do so, to issue a direction that a planning application should be obtained for certain types of development, notwithstanding the fact that an application would not otherwise be required. In other words, a local planning authority can withdraw permitted development rights.
In this case the local planning authority is Cornwall Council (following a request from Falmouth Town Council) and that is exactly what they have done.
Why has the direction been made?
Falmouth has a reputation as one of the most popular places to live in England and with the expansion of Falmouth University the student population continues to grow. In addition, the lack of affordable housing and general market conditions make it difficult for people to get onto the housing ladder – all these factors conspire to make HMOs a popular, indeed essential, form of housing for many people.
Falmouth residents were consulted in spring 2015 as part of the Town Council’s efforts to draw up a Neighbourhood Development Plan, and some 63% of respondents felt that HMOs should be more tightly controlled in the planning process by the use of an Article 4 Direction.
So, what are the effects of the Article 4 Direction?
The council is confident that this change will allow for the better balancing of the community and character of Falmouth.
However, anyone looking to allow their Falmouth property to be used as an HMO from 16 June will need to apply to the council for planning permission for a material change of use.
The council will consider the application in accordance with both the Cornwall Local Plan and the emerging Falmouth Neighbourhood Plan, of which draft Policy HMO1 simply states that HMOs will not be permitted in the highest-concentration area (to the east of the A39). Outside that area, draft Policy HMO2 provides that HMOs will be permitted if the application meets a strict 10-point criteria.
In most cases an application for planning permission to change the use of your property from an HMO to a dwellinghouse will not be required. That change of use falls outside the scope of the Article 4 Direction and is therefore likely to remain a permitted development right.
How does this affect me?
Finally, the direction does not operate retroactively – if your property is already being used as an HMO then planning permission will not be required as there will have been no change of use since the direction came into force.
However, if you have converted your property into an HMO fairly recently you may need to be able to demonstrate to the council that the change of use occurred prior to the direction coming into force. If an enforcement action was brought against you, you might find it difficult to prove otherwise unless you have kept sufficient evidence of that use.
It is also important to bear in mind that rights to use a property as an HMO can be lost by allowing the property to be occupied by a couple or family. Once the HMO use is lost planning permission will be required in order to allow occupation by a group of students. Landlords should take care to plan the occupation of their property to ensure that they can continue to use it as an HMO in the future.
To ensure that the use of a property as an HMO is lawful, an application can be made to the council for a certificate of lawfulness. This is a relatively straightforward process which, if successful, will provide you with peace of mind and conclusive proof for future purchasers. Given that the grant of a certificate of lawfulness depends on providing sufficient evidence to prove that the use is lawful, it is simpler to apply for a certificate sooner rather than later.
The planning team at Stephens Scown LLP is able to advise and assist on certificate of lawfulness applications.
Chris Tofts is a partner in the planning team at Stephens Scown. He can be contacted on 01872 265100 or planning@stephens-scown.co.uk