Looked at in the round

An inspector has issued a certificate of lawfulness for conversion of a dwelling in Liverpool to a student HMO notwithstanding the council’s argument that occupation did not occur until after an Article 4 Direction revoking permitted development rights for such conversions was in place (DCS Number 400-035-061).

The council maintained that the use must be operational and occupation was necessary in order for a material change of use to take place. 

The appellant, on the other hand, pointed to the Supreme Court judgment in Welwyn Hatfield BC v SSCLG & Beesley [2011]. Lord Mance, the inspector noted, held that “too much stress… [has] been placed on the need for ‘actual use’…it is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is.” Thus, the inspector reasoned, it was incorrect to regard the commencement of use as automatically giving rise to the change of use or, conversely, to conclude that there had not been a change of use because the building was not actively occupied. 

The inspector judged that to look at the evidence in the round it was necessary to consider the former use of the building, the physical state of the building at the relevant date, the actual use of the building at that date, the intended use and the whole chronology. Intended use, she held, should be considered objectively and with regard to evidence of, for example, any active marketing of the property for letting. She found that the purchase of the property, the contractual arrangement with a letting agency, the tenancy agreement and certification, combined with the physical works, had given rise to a material change of use to a small HMO prior to the Article 4 Direction coming into force. Issuing a certificate, she concluded that, on the balance of probabilities, the use of the building as a small HMO was lawful at the date of the application.

A further appeal case in which Welwyn Hatfield has assisted the inspector’s determination of the appeal (DCS Number 400-012-281) can be found at section 4.3211 of DCP Online.