Protecting your property with guardians – planning issues to consider

The planning status of the use of property guardians (PGs) has been recently considered by the Planning Inspectorate and the Upper Tribunal.

Can property guardians occupying a property lead to a material change of use to residential?

In a recent appeal (APP/U5360/C/20/3265866) relating to a public house (the property) which had ceased trading, the appellants, as a form of security for the property, installed PGs. The Local Planning Authority (LPA) served an enforcement notice for the “material change of use from a public house to two self-contained residential units”.

The appellants argued there was no change of use of the property as no changes has been made and it was only a temporary measure. The Inspector upheld the enforcement notice and concluded there had been a material change of use, as the use of the ground floor and basement for residential purposes was materially different from its use as a pub. It was the use and not any works to facilitate the use that was important.

As to the temporary nature of the residential use, there was no guarantee of how long the PGs would remain and thus this argument held little weight. What the Inspector did agree however was a longer compliance period so that proposals could be properly formulated for the property’s long term use.

Property owners and managing agents though should note that until such time as any enforcement notice is served and not complied with, any material change of use is not unlawful. In addition, LPAs will often not take enforcement action as it would not be expedient to do so.

If taking a new interest in such a building where there has been occupation by PGs it is therefore important to understand how long that use has been in place, and try and establish with the LPA what the lawful use comprises as otherwise there is a risk of a change back to the previous use also being a further unlawful change and complications arising on future proposed uses.

Only if the occupation by the PG exists for in excess of the relevant enforcement period could it become lawful (this can be four or 10 yrs depending on the facts).

Does a property become a HMO if it is occupied by several property guardians?

In the case of Global 100 Ltd v Jimenez and others, the Upper Tribunal concluded that an office building occupied by PGs was a HMO and as such required licensing.

The standard test for what constitutes a HMO is laid out in section 254(2) of the Housing Act 2004 (HA).  One of the criteria that need to be met in the standard test is that the ‘occupation of the living accommodation constitutes the only use of that accommodation’.

In this case it was argued by the Appellant that the PG’s occupation of the living accommodation in the building did not constitute the only use of that building because it was also used to perform the guardians’ duties under their terms of occupation (i.e. to provide a form of security for the building). This argument was rejected by the First-Tier Tribunal and the Upper Tribunal mainly because the use of the building was living accommodation as it provided a roof over the PG's head.

If there is found to be use as an HMO and there has been failure to obtain the relevant HMO licences, then a rent repayment order can be made requiring repayment of rent by the landlord/agent and/or a conviction.