The loss of privileges

In upholding enforcement notices directed at the material change of use of premises in north London to a house in multiple occupation and flats, the erection of a single storey rear extension and a dormer roof extension, in addition to the erection of a dwelling in the back garden, an inspector has pointed out that permitted development rights do not apply to buildings or uses which are unlawful (DCS Number 400-035-493).

With respect to the use of the main building, the inspector recorded that Section 55(3)(a) of the Act sets out that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used. Consequently, the change of use to an HMO and flats was development for which planning permission was required. Further, Article 3(5) of the GPDO sets out that permission granted by Schedule 2 does not apply if (a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful; or (b) in the case of permission granted in connection with an existing use, that use is unlawful. 

It was not disputed, the inspector noted, that the rear extension and dormer met the limitations set out in Schedule 2, Part 1, Classes A and B, but what was in dispute was whether the premises actually benefited from permitted development rights at the time of their construction and if they did, whether the works which had been carried out were constructed to facilitate the unauthorised change of use. The appellant confirmed that the construction of the single storey rear extension, rear dormer extension and outbuilding were carried out at the same time. 

The inspector explained that, as held in RSBS Developments Ltd v SSHCLG & Brent LBC [2020], even where prior approval has been granted, Article 3(5)(a) may be engaged where unlawful works have been carried out. The same principle applies where in the case of permission granted in connection with an existing use, that use is unlawful (Article 3(5)(b)). The inspector found that the outbuilding had been used as a dwelling. He also found that the subdivision of the premises to form separate planning units constituted a material change of use and was unlawful. Consequently, he ruled that Article 3(5)(b) was engaged and the premises did not benefit from permitted development rights.

There is a section on multiple occupation at 11.2 of DCP Online.