Understanding Article 4 is crucial for HMO landlords and one legal expert says there is a big difference between HMO licensing and planning permission.
Des Taylor of Landlord Licensing & Defence was recently contacted by a very confused client who asked: "My local council is insisting I get planning permission for my HMO in an Article 4 area or obtain a Certificate of Lawful Use."
He says this situation is becoming increasingly common, leaving many landlords confused and sometimes councils refusing to issue licences; while licensing and planning are distinct legal areas, each with their own legislation, they can create a complex scenario.
And he explains: "Council licensing departments are increasingly making these planning-related demands on behalf of their colleagues."
Landlords who receive the demands are frequently asking if the requests are legitimate.The answer, Taylor says, lies in a recent Upper Tribunal case: "While not entirely new, the case established that licensing departments can restrict a licence based on planning requirements within an Article 4 area."
For existing HMOs in Article 4 areas (where the automatic right to convert a residence into a small HMO has been removed by the council), obtaining a new licence can become more complicated.
"Licensing departments are increasingly requesting proof of planning permission or a Certificate of Lawful Use during the application process. This is essentially due diligence. The council wants to ensure HMOs comply with planning restrictions within Article 4 areas."
However, landlords with established HMOs prior to the Article 4 implementation can demonstrate this for licensing purposes.
"While not legally mandatory," Taylor explains, "a certificate of lawfulness is similar to a PAT test certificate demanded for portable appliances. It's a way for the council to ensure compliance."
However, he claims that most council planning departments will try their utmost to deny a Certificate of Lawful Use (CLU) – after all the reason they introduced the Article 4 direction was to stop the proliferation of HMOs. So wise landlords should avoid applying for CLU and use other methods that cannot be contested so easily by the council.
He says that landlords can prove established use with tenancy agreements and other supporting paperwork to those tenancies and adds: "If you have agreements showing consistent HMO use before Article 4, that should suffice. Unfortunately, some licensing departments may resist accepting alternative evidence, and appealing a rejected licence or restricted licence to the First-tier Tribunal can be costly and time-consuming.
"Landlords with documented proof of pre-Article 4 HMO use shouldn't face licensing issues. But if the licensing department protests or refuses to accept the evidence, professional advice is crucial."
Having a ‘refusal to licence’ on your record as a landlord is really bad news as you will have to declare this on every licence application for the rest of time as it is on your record for ever. A refusal to licence counts as a serious black-mark not only for licensing but also with mortgage providers and insurers. Councils can even use it to get you declared ‘Not fit and Proper’ as a landlord which could destroy your entire business.
Taylor says that legal representation will strengthen a landlord's case and demonstrate their understanding of the process.
Key takeaways for HMO landlords worried about Article 4 directions:
- Gather evidence of pre-Article 4 HMO use (tenancy agreements, rent receipts);
- Seek professional help for navigating licensing and planning complexities;
- Invest in professional advice upfront to avoid costly appeals later;
- Meticulous record-keeping is essential for future reference.
And Taylor concludes: "By understanding these procedures and seeking professional guidance when needed, landlords can ensure a smoother licensing process for their HMOs."
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There seems to have been an ongoing war in Glasgow between the Planning Department who want all HMO properties to get planning permission for "change of use" - which is often simply 3 or 4 unrelated adults sharing a flat now with a mandatory HMO Licence instead of sharing the exact same flat before the HMO Licence became mandatory!
I've just ignored the Planning department for the last 20 or so years and continued to be granted HMO Licences by simply ticking a box saying I am aware of the Planning requirements for HMO properties.
I have heard horror stories of Councils refusing Planning premission when landlords couldn't provide details of tenants going back over 10 years continuously whereas the Council Tax department already holds such records and could easily provide the confirmation required by the Planning Department.
Ignoring Planning until totally compelled to cooperate with them seems the best policy.
Going down the planning route just opens a can of worms
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