When is an HMO an HMO? Judge backs landlord in key High Court case

A High Court judge has backed a government inspector who dismissed a council’s definition of a property as self-contained flats rather than an HMO.

The court heard that landlord Ismail Kabala, who has held a licence for the property involved since at least 2015, applied for retrospective change of use relating to the detached house in The Ryde, Hatfield (main image), to a small HMO.

However, Welwyn Hatfield Borough Council handed him an enforcement notice on the basis that the house had been sub-divided into five self-contained flats, in breach of planning rules.

Factually incorrect

Kabala challenged the notice as factually incorrect, insisting that the house comprised four self-contained units and two bedrooms without kitchen or bathroom facilities.

A government inspector agreed and quashed the notice, finding that the breach of planning control was best described as a change of use to an HMO within Use Class C4.

The council appealed and said the property could not be regarded as an HMO because it did not meet all the criteria in the standard test set out in s254(2) of the Housing Act 2004.

However, the court ruled that a building could also meet the definition of an HMO if it meets ‘the converted building test’ by containing one or more units of living accommodation that do not consist of a self-contained flat or flats.

Read more: difference between HMO and bedsit.

The court heard that the council feared issuing a further enforcement notice, alleging a breach of planning rules by changing the use to an HMO would fail on appeal as the landlord had planning permission to do that. The judge dismissed the council’s appeal and added: “It is in a position to decide for itself how best to describe the alleged breach of planning control, taking account of the evidence that is available to it for that purpose.”

Read the judgement in full.