Councils lose challenge over houses in multiple occupation

Three local authorities have lost a judicial review challenge to a government decision to scrap planning permission to convert single dwellings into houses in multiple occupation (HMOs).

The Court of Appeal heard that the change came into force in October 2010, six months after the previous government had introduced planning permission for HMOs.

Lord Justice Pill said three councils '“ Milton Keynes, Oxford and Newcastle '“ argued that communities and local government secretary Eric Pickles had failed to consult councils sufficiently before making the change.

Delivering judgment in R (on the application of Milton Keynes Council and others) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575, Pill LJ said Milton Keynes Council had 'for many years suffered problems as a result of the conversion of single dwelling houses into HMOs'.

He said that, as a result, the council had imposed conditions on planning permissions limiting the number of lettable rooms and dealing with questions such as cycle storage, parking, onsite clothes drying facilities, bin storage and sound insulation.

Pill LJ said that, according to the council's statement, there were about 160 HMOs in Milton Keynes with planning permission but more than 400 without.

Responding to concerns from councils, the Labour government consulted on HMOs in 2009. The first option was an improved version of the status quo, the second introduced HMO as a new use class requiring planning permission, while the third gave councils the option of introducing planning permission in certain defined areas, subject to paying compensation.

The Labour government implemented option two by statutory instrument on 6 April 2010.

Pill LJ said, following the general election, that the coalition government took the view that the 'blanket' requirement for planning permission was not justified.

'The government was concerned that the requirements would deter prospective landlords from entering the market, leading to inadequate supplies of low-cost housing in many areas,' he said.

Following an informal consultation with 'key stakeholders', the government abolished the need for planning permission and implemented option three from the original consultation, which had received the backing of only one per cent of respondents, on 1 October 2010.

Milton Keynes Council described itself in its response to the informal consultation as 'outraged' by its 'narrowness and shortness'.

Lord Justice Pill said he did not 'accept the submission that a decision maker can routinely pick and choose whom he will consult'.

However, he said the fairness of the 2010 consultation on HMOs must be considered in the context of the 'very full consultation' carried out the previous year.

Pill LJ said the central issue that needed to be decided by the secretary of state, whether to permit a change of use to an HMO without planning permission, involved a 'macro-political decision'.

He said the 'recent and comprehensive consultation' was the key to the decision in the present situation.

'The secretary of state was minded to make the orders challenged notwithstanding the strong, articulated objections to them by local planning authorities, of which he was aware.

'The decision to make them was a political decision which the secretary of state was entitled to make. In the circumstances, he was then entitled, first, to make the consultation a limited one and, secondly, to decide that there was no evidence of significant new issues arising, which required fuller consultation.'

Lord Justice Pill rejected the councils' appeal. Lady Justice Arden and Lord Justice McFarlane agreed.