Claimant's HMO License Appeal Rejected by First-tier Tribunal

OUTCOME: Refused

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BH/HSL/2025/0001 Property : 178 [ADDRESS] [POSTCODE] Applicant : [redacted] :

Mr [COUNSEL]

Respondent : [redacted] Representative : Dr [COUNSEL], counsel Type of [NAME] : Appeal against a refusal to grant a HMO licence – schedule 5, para. 31(1) of the Housing Act 2024 Tribunal members : Judge [NAME], CEnvH Venue : 10 [ADDRESS] [POSTCODE] Date of hearing Date of decision : 18 September 2025 5 October 2025

DECISION

2 The tribunal’s decision (1) The tribunal refuses the applicant’s appeal. _________________________________________________ The [NAME] 1. This is an [NAME] made pursuant to Schedule 5, para. 32(1) of the

Housing Act 2004 seeking to appeal against the respondent’s refusal to

grant a HMO licence for the subject property at 178 [ADDRESS] [POSTCODE] (‘the property’). The background 2. In the [NAME] form, the applicant stated:

An [NAME] for a House in Multiple Occupation (HMO)

licence was submitted for the property known as 178,

[ADDRESS], [POSTCODE] “the house”. On 02 January

2025, the council decided that it would refuse to grant the

licence.

The reason for the refusal was as follows:

"A previous one year Additional HMO licence was granted on

10 May 2022 due to a breach of planning regulations, the

property was converted from a C3 dwelling house to a C4 HMO

without the necessary planning permission. The licence was

granted for the shorter term of 1 year, to allow the

owner/landlord to legally rent the property whilst taking steps

to regularise the use of the address. The notice of decision and

covering letter which accompanied the Licence advised the

landlord that the council would expect the owner/landlord to

take steps to regularise the use of the address. This could

have included, if necessary, obtaining possession of the

property through the service of a section 21notices (Housing

Act 1988), or by applying to the Council's Planning Department

for a Certificate of Lawfulness to legalise the change of use

from a C3 Class dwelling house to a C4 Class HMO. ln

circumstances where no steps to regularise the use of the

dwelling have been taken it is Council policy

not to grant another licence. A search of the Council's planning

database has confirmed that no [NAME] for a change of use

or established use has been made and so the property is still in

use illegally as an HMO."

3 The grounds for appeal 3. The applicant’s representative stated on behalf of the applicant in the

[NAME] the following:

I am a planning expert (I have over 30 years of planning

experience and I was previously Director of

Planning at Barnet Council) therefore, I fully understand all

permitted development rights and how Articles 4 directions

work.

In the case of this property the HMO use commenced before the

Article 4 Direction was imposed on16th September 2014

meaning the change of use to a HMO was lawful at the time.

The HMO team claim the use as a HMO is "illegal". This is not

correct. Even if the HMO did require planning permission the

use would not be illegal but unauthorised. The use of the

property as a HMO can only become illegal if an effective

planning enforcement notice is in place.

The Council's HMO team have stated that the property requires

a certificate of lawfulness to prove it is lawfully a HMO. I have

continually advised the Council that there is no legal

requirement to apply for planning permission or a certificate of

lawfulness. I advised the HMO team to seek advice from their

planning colleagues if they had doubts about the advice I gave

but they did not respond to this point.

The HMO team's argument is that the planning lawful use of

the property is not a HMO, but they are not experts on

planning law. Also, the Council's planning enforcement team

are aware of the use of the HMO for many years yet they have

not taken any enforcement action against the use, indicative

that they accept the use is lawful.

There is no requirement in the Housing Act requiring either

planning permission or a certificate of lawfulness to

demonstrate a properties use as a HMO is lawful under the

Planning Act before a HMO licence can be issued.

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My stated position is evidenced by my knowledge that other

Council's do not require a planning permission or certificate of

lawfulness for a HMO before they issue a HMO licence. This is

because any issues of planning should only be dealt with by the

local planning authority and not the Council's licensing

department. The hearing 4. The applicant did not attend the hearing in person and was represented

by Mr [RESPONDENT] (planning consultant). The respondent was

represented by Mr [COUNSEL] of counsel. In addition the tribunal was

provided with a hearing bundle of 160 digital pages by the respondent.

The applicant did not provide a hearing bundle despite the tribunal’s

clear directions dated 3 April 2025. Consequently, the applicant sought

to rely on the [NAME] form and the accompanying documents as well

as a Reply of 4 digital pages to the respondent’s bundle. 5. Section 71 HA 2004 gives effect to Schedule 5, on appeals. 25. Paragraph

31(1)(a) of Schedule 5 provides that the applicant for an HMO licence

may appeal to the Tribunal against any decision to refuse the licence.

Paragraph 34(2) provides that an appeal is to be by way of a re-hearing

but may be determined having regard to matters of which the Council

was unaware. The tribunal may confirm, reverse or vary the Council’s

decision (para 34(3)) and may direct the Council to grant a licence to the

Appellant on such terms as the Tribunal may direct (para 34(4). 6. At the re-hearing of the decision to refuse to grant a licence the

respondent relied on its bundle of documents and the oral evidence of

Mr [NAME] who spoke to his witness statement dated 9 June 2025. The issues 7. The substantive issues between the parties were one of fact, as the

respondent accepted that if the property had been in use before the

coming into force before the Article 4 Direction took effect on 16

September 2014, planning permission to change the use of a small

‘C4’ HMO without seeking planning permission for that change was not

required. Consequently, the [NAME] for a HMO licence may have

been successful. 8. The respondent asserted that:

For several years – although it is wholly unclear from when –

the Appellant has used the Property as an HMO but without

seeking planning permission for the change of use to HMO from

residential. As early as 7 February 2018, the Council’s licensing

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team invited the Appellant to apply for planning permission for

the HMO use: see Exhibit JF6 to Fine WS [11]. On 10 September

2018, the Appellant completed a Council questionnaire in which

he stated that he was “not sure if the property is an HMO because

the property is only occupied by 3 persons”: see Exhibit JF7 [45].

On 11 January 2019, the Applicant told the Council’s licensing

team that he had “put the property up for sale” and that some of

the tenants had moved out: Exhibit JF9 [54].

On 11 July 2019, the Council designated areas within its ward for

additional licensing [21] under s.56 of the Housing Act 2004

(“HA 2004”). The designation came into force on 1 April 2020.

. …

On 10 May 2022, the Council formally granted the Appellant an

HMO licence in respect of the Property, for the reduced period of

1 year [91].

It was not until 16 July 2024, some 14 months after the expiry of

the licence granted in 2022, that the Appellant applied for a

subsequent HMO licence [106]. On 24 October 2024, the Council

proposed to refuse that licence on the basis that the Appellant

had not regularised the planning position since the grant of the

previous licence in 2022 [125]. In subsequent correspondence

with the Appellant’s agent on 5 November 2024, the Council

indicated that the issue was the lack of any record confirming

that the HMO use began before the Article 4 Direction came into

force: see Exhibit JF20 [130]. The Council was clear that, had

such a record existed, it would not require planning permission

for the HMO use and would grant a full-term licence.

Despite the correspondence about the planning issue stretching

back several years, the Appellant has never provided any

evidence as to when the HMO use began. 9. The respondent asserted that the burden of proof to establish us of the

property as an HMO was on the applicant. In the absence of this

evidence, the respondent asserted the applicant’s change of use of the

property to a HMO was unauthorised and requires regularising before a

full-term licence can be granted. 10. The respondent also submitted that:

In extreme circumstances, failing to take enforcement action

within the relevant period (usually 10 years, for the material

change of use of a building: s.171B TCPA) renders the

development immune from enforcement. But again, there can be

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no credible claim to immunity without the Appellant providing

evidence as to when the change of use took place. In any event

the proper forum for testing any immunity claim would be

through the submission of an [NAME], not simply by

raising it in the Tribunal as part of a licensing appeal. The

Appellant appears to accept this, in the appeal form: “any issues

of planning should only be dealt with by the local planning

authority.” 11. No written or oral evidence was given by or on behalf of the applicant

and no documentary evidence was provided to demonstrate when the

letting of the property as an HMO first began or the continuous,

uninterrupted use as a HMO. Mr [APPELLANT] accepted that the applicant had

not provided any evidence to the tribunal to establish when the property

was first used as an HMO or for what periods this had continued. In the

event the use of an HMO was proved by the applicant a 4 year

(exemption) applied rather than the 10 years claimed by the respondent.

In any event this was not an issue for the tribunal in this [NAME]. The tribunal’s reasons 12. In considering its decision the tribunal had regard to s.64 of the Housing

Act 2004 which states:

(1)Where an [NAME] in respect of an HMO is made to the

local housing authority under section 63, the authority must

either—

(a)grant a licence in accordance with subsection (2), or

(b)refuse to grant a licence. 13. The tribunal was satisfied by the respondent’s written and oral evidence

that it had carefully considered the applicant’s [NAME] for a HMO

license for the subject property and in the absence of planning

permission or evidence of continuous use as a HMO prior to 16

September 2014, had reached a decision to refuse to grant a licence that

was both reasonable and supported by the documentary evidence 14. The tribunal finds the applicant either misunderstood or chose to ignore

the respondent’s requests that he provide evidence of his use of this

property as an HMO. This ‘misunderstanding’ continued at the hearing

and appeared to the tribunal to take Mr [RESPONDENT] somewhat by surprise

despite the respondent’s Statement of [NAME] it clear what the

disputed issues were. 15. The tribunal accepts the respondent’s submission that it is for the

applicant to establish the applicant’s use of the property as this

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information is within his knowledge and control. The tribunal also

accepts the respondent’s submission that the grant of a temporary

licence allowing the applicant to ‘regularise’ the position is not

tantamount to surrendering the right to refuse to grant a full-term

licence. 16. In conclusion, the tribunal affirms the respondent’s decision to refuse

the grant of a licence and refuses the appeal.

Name: Judge Tagliavini Date: 5 October 2025

Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal ([NAME]), then a written [NAME] for permission must be made to the First- tier Tribunal at the [NAME] which has been dealing with the case. The [NAME] should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-[NAME]-for- permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber The [NAME] for permission to appeal must arrive at the [NAME] within 28 days after the Tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the Tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal ([NAME]).

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