The challenge
An HMO can operate successfully for many years without its planning status ever being formally documented. The uncertainty often only comes to light when the property is sold, refinanced, relicensed or reviewed by the local planning authority.
That was the position facing the owners of two established HMOs in Leeds and Canterbury. Both properties are located in areas covered by Article 4 Directions which restrict the change of use of residential properties into HMOs.
- In the case of the Leeds property, the change of use occurred after the Article 4 Direction was implemented, and the previous owner did not obtain planning permission for it. The application therefore needed to confirm that the property had been used as an HMO for 10 continuous years.
- In the Canterbury case, the change of use occurred before an Article 4 Direction was introduced. The change of use was therefore lawful at the time, and the introduction of the Direction did not change that. The application needed to demonstrate that the property was in lawful use as an HMO before the Direction and that there had been no other material change of use since.
A Certificate of Lawfulness was the appropriate route for both. Unlike a planning application, the Council was not being asked to decide whether the use was acceptable against current planning policy. The question was whether the evidence demonstrated, on the balance of probability, that the specified use was lawful at the date of each application.
Our approach
A successful lawful development certificate application depends on the quality, continuity and clarity of the evidence, not simply the number of documents submitted.
Case one: 3-bedroom HMO in Leeds
Cedar Planning reviewed the planning history and organised the evidence into a clear chronological case. Rather than submitting an unexplained bundle of documents, the application demonstrated how the evidence collectively established the character and continuity of the occupation. The submission included:
- Tenancy agreements covering the relevant period and demonstrating occupation by unrelated sharers.
- A supporting statement from the managing agent explaining how the property had been marketed, managed and occupied.
- A statutory declaration providing a formal first-hand account of the use history and addressing matters not fully demonstrated by the tenancy records.
- A detailed planning statement explaining the relevant legal test and why the evidence supported the use for which the certificate was sought.
Case two: 5-bedroom HMO in Canterbury
The Canterbury property had also operated as a shared house over a substantial period without a certificate confirming the planning position. Cedar Planning examined the tenancy history, identified the strongest documents and prepared a focused application addressing the precise use of the property. The case relied upon:
- A chronological series of tenancy agreements demonstrating occupation of the property as a shared house throughout the relevant period.
- A sworn affidavit providing a direct account of the use and additional context where required.
- A focused planning statement explaining why the evidence, considered as a whole, was sufficiently clear and precise to justify the certificate.
The result
Both applications were approved, giving the owners a clear and conclusive planning record of the HMO uses described in the certificates. This provided comfort to one applicant, and helped a property sale progress in the second case.
- Leeds City Council
- Certificate granted for a 3-bedroom HMO
- Canterbury City Council
- Certificate granted for a 5-bedroom HMO
Leeds City Council accepted that the evidence established the lawful HMO use on the balance of probability. The owner now has a formal planning record that can assist with the future management, refinancing or sale of the property. In Canterbury, the certificate removed uncertainty over the planning position without requiring the owner to submit a retrospective planning application based on the current merits of the use.
What this means for your property
The evidence required will vary between properties, but commonly includes:
- Tenancy agreements, licences, rent schedules and deposit records;
- HMO licences and correspondence with the local authority;
- Statements from owners, previous owners, agents or occupiers;
- Statutory declarations or affidavits;
- Utility bills, council tax records and dated correspondence;
- Inventories, letting particulars and dated photographs; and
- A planning statement bringing the evidence together and addressing the relevant legal test.
The strongest applications normally combine several sources of evidence which support the same clear chronology.
Cedar Planning advises landlords, investors and property professionals on HMO planning matters across England. Our service can include the initial evidence audit, preparation of the application and supporting statement, drafting of statutory declarations or affidavits, submission to the local planning authority and management of the application through to decision. Learn more about our Certificate of Lawfulness service or view our guidance on HMO planning and Article 4 Directions.
Every lawful development certificate application turns on its own facts, evidence and planning history. The outcomes described in this case study do not guarantee that a certificate will be granted in another case.
Dan Malloy MRTPIDirector and Chartered Town Planner at Cedar Planning, with more than ten years of public and private-sector planning experience. About Cedar Planning
