Article 4 Planning for HMO in Brighton – help required for failed planning consent

I hope readers can help on this question for Tim as I suppose it depends on how much power the Council have in making up/enforcing their rules.

If a't tenancy existed on the property before the 6th April then that is all that matters. Whether or not it needed a licence at that date or afterwards matters not - what does is that it was an HMO.

You do not need to occupy to be a tenant - just have the legal capacity to do so. In this case that seems to exist - in which case the Council doesn't have one - case that is.

How petty can they get Appeal and tell your neighbour you might be minded to move the tenants from hell in if refused. You still remain in control of who you let too.

I agree with Andy about appealing the decision, and with Industry Observer. it matters not that the tenant didn't sleep there
I must, however, disagree with Andy about the neighbours - it is always best to remain on as good terms as possible with neighbours, since they can be, effectively, your eyes and ears locally

You should definitely appeal this as per Industry Observer's comment.

I would also recommend going to see the neighbour and making friends.

Ask if they can spare 5 minutes to talk to you.

Sit down with them and explain that you manage professional HMO's and that you vet your tenants very vigorously.

Suggest that they can be your eyes and ears for the property, and give them your contact details to call you if they have any concerns.

Get them on your side by helping them understand that they have nothing to fear from your HMO.

This can be worked out to create a win/win situation for all involved imho.

You didn't say if you'd bought the property only just before the neighbour did, in which case they would be expecting to live hext door to a couple or family,
or if you'd had tenants there before these ones to which you refer, or is this the first time you've let this property.

Understandable where the Council and the neighbour are coming from. As the circumstances of the situation appear somewhat contrived. In order that you met the new incoming regulations.
Other the tenancy agreement. What other substantive evidence can you provide to support your case

Why have you waited so long? You could have asked for a Judicial Review but from 1 July 2013 these changes to, the Civil Procedure (Amendment No. 4) Rules 2013 ("Rules") mean that you only had 6 weeks.
1. Reduce the time limit for planning JR claims to 6 weeks from the date the grounds arise (Civil Procedure Rule (CPR) 54.5). A JR claim arises on the date the permission is issued, not on the date of resolution (R v Hammersmith and Fulham LBC, ex p Burkett, 2002). The previous timescale was 'promptly or in any event within 3 months'.

In my opinion you have got established use and this authority should not have entertained a complaint from the neighbour. The issue of occupancy does apply when a local authority intend to take action against a landlord for not having an HMO licence but it does not apply for Article 4 Directions. Unless the stated criteria for the A4 is that there must be established used for xyz period before the start date? Most only ask for established use by the start date and the landlord only has to show a signed AST that was in place before the start of the A4 You need to check the criteria first.

If the criteria states that use is established dependent on use of the property at the start date you have a case based on the signed AST and deposits having been paid - in law the tenancy existed, regardless of the occupancy because the tenants had the legal right to "use" the property as an HMO. The fact that the tenant moved his belongings into the property is further proof of this. - I would love to know how the Planning department knew that he had not slept there - I would have no idea when my tenants did or did not sleep in my properties?

Since you are now out of time for a Judicial Review one option would be to take the case to the Scrutiny Committee. Info here http://www.brighton-hove.gov.uk/content/council-and-democracy/councillors-and-committees/scrutiny

I hope that you do follow this up because the growth of A4's are cause for concern and if the Planning departments are not playing by the rules landlords will be afraid to invest in properties to covert to HMOs thus reducing affordable housing at a time when it was never more needed. A4's are meant to control the clustering of HMO's and the local authority should publish the basis on which their decisions will be made ie. No permission if your property is within xyz metres of an existing HMO. Investors will then save time and money but will not be discouraged per se.

In my, not so humble opinion, controlled clustering of HMO's makes more sense but that is for another discussion and one which I am having with West Midlands authorities at the moment.

I wish you good luck - please report back.

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Mary Latham - follow me on Twitter @landlordtweets

Also see http://www.amazon.co.uk/dp/1484855337 for the perfect present for landlords for under a fiver

Tim, although not an expert in English law, I believe you are correct. The tenancy was in existence on the due date so the Council are wrong.

But lets analyze the situation. Who told the Council the incorrect information? The Council can only act on the information they are provided. In this case they apparently acted on incorrect information. You need to point this out. On this point I don't see the requirement to appeal unless you accidentally gave them the wrong information. Whether someone is in residence or not is immaterial. The lease defines the possession at the time. If 3 or more people were in possession it was an HMO. You have to watch this or they will be attempting to charge you council tax next. By the way are you leases combined - joint ans several or individual?

If you get 'difficulty' with the Council on this start the formal complaints procedure. All councils have that on their website. There are 3 levels the final level being the Council CEO. Then if they still do not see reason you take the complaint to the ombudsman. The mere instigation of the formal procedure makes staff think twice. And lets face it logic says you are in the right.

In addition to the very sensible and pertinent comments above, it might be worth clarifying a couple of points not clear from your original post. Did the LA give legal notice for the Article 4? When did they make their decision in respect of your usage, and have they issued an enforcement notice?
Notwithstanding the sensible stuff, and in the spirit of 118 I would like to propose a couple of mischievous alternative strategies that might provide an immediate fix, and that might serve to make an ass of a completely unsustainable piece of legislation?
As per the DCLG circular;
Circular 08/2010 Changes to Planning Regulations for Dwellinghouses and Houses in Multiple Occupation (November 2010) there are a couple of get out of jail free cards that can be played...........
1. Your tenants might claim to be living as a family....... in a menage a trois (ou quatre) Such a claim would require the local authority to prove that the tenants were not living in such a "Brightonesque" manner.
2. One of your tenants may claim to have a number of staff.........(any number that he or she may like) they might be paid a nominal wage (say 1p per week) It transpires that domestic staff are exempt from occupancy rights when calculating class usage.
3. If your tenants are a religious order they too can be exempt..........
Perm any one of these whilst pursuing your more serious route to resolution?