The Scottish Government

« Previous | Contents | Next »

Listen

Annex B - Houses in Multiple Occupation: Interface between planning control and licensing

INTRODUCTION

1. The purpose of this guidance is to give planning officials brief background on the licensing scheme for houses in multiple occupation ( HMO) and guidance on the implications for development plan policies on HMOs. The description of the licensing scheme emphasises those aspects which will be of interest to planners.

HMO LICENSING SCHEME

BACKGROUND

2. The purpose of HMO licensing is to improve standards in this part of the private rented sector, in terms of the safety and suitability of the physical accommodation, and the management of tenancy issues. HMOs provide an important supply of housing, particularly for groups such as students, transient workers and those who require support in a homely setting. In 1991, local authorities in Scotland were given discretionary powers to introduce licensing of HMOs under the Civic Government (Scotland) Act 1982. A new Order under that Act was made in 2000, making it obligatory for all authorities to introduce an HMO licensing scheme. The Scottish Government has produced guidance on the licensing system, Mandatory Licensing of Houses in Multiple Occupation: Guidance for Licensing Authorities (available at http://www.scotland.gov.uk/Publications/2004/07/19734/40899). This guidance focuses on the procedures and activities involved in operating the HMO licensing scheme and includes a section on the interface with planning controls.

3. HMOs which are subject to the licensing scheme are defined as follows: '[a] house is an HMO if it is the only or principal residence of three or more qualifying persons from three or more families (definitions of terms are given in the HMO legislation and the HMO guidance)'. There are exemptions from the HMO licensing scheme, including religious communities, properties owned by communal groups and accommodation provided as part of certain services registered with the Care Commission. It is a criminal offence to operate an HMO without a licence.

LICENSING PROCEDURES

4. Licence applications are made by the owner of the property. The licensing authority has to satisfy itself:

• that the applicant, and any manager of the HMO, is a fit and proper person to hold a licence; and
• that the property is suitable for use as an HMO, for the proposed number of people.

5. The applicant must also display a notice outside the property for twenty-one days, informing the public of the application and how to submit objections. Any person may make an objection to a licence application. The authority must copy any such objection to the applicant, and must notify the applicant of any other information they intend to take into account in considering his application. The applicant must at least be given an opportunity to comment in writing on any objections and other information, and the licensing authority may give the applicant and any objectors an opportunity to be heard in person. The licensing authority can also make any reasonable inquiries it thinks fit to determine the questions in paragraph 4 of this annex. This usually includes a physical inspection of the property, scrutiny of management procedures and records, and a police check on the applicant and any manager.

6. Decisions on licence applications are made either by the Licensing Committee, or by an officer with delegated powers. Licences are usually granted subject to conditions, which ensures that the HMO is managed properly and that appropriate standards are maintained for the duration of the period of the licence. The route of appeal against a licensing decision, for either the applicant or an objector, is to the sheriff.

7. A licence may be granted for any period up to three years. An application for renewal must be made before the end of the licence period, and goes through the same process as for the initial application, including the opportunity for objections to be made. If there is a material change of circumstance affecting the licence-holder or the operation of the HMO, the licence-holder must inform the licensing authority as soon as possible. The authority can also vary the terms of the licence at any time, either at their discretion or if the licence-holder asks them to do so.

8. A licensing authority can suspend a licence if, for example, in their opinion the licence-holder is no longer a fit and proper person to hold the licence, or the licensing conditions have been breached. The process for suspension includes a hearing and appeal process. A licence may be revoked by the sheriff if a licence-holder is convicted of a relevant offence in relation to the licence.

9. In most cases where an unlicensed HMO is identified, the licensing authority will seek to resolve the situation without applying statutory enforcement proceedings; however, the ultimate sanction in the licensing scheme is prosecution.

ADMINISTRATION

10. Processing an application for an HMO licence requires the involvement of officers from several different disciplines, departments and agencies. The officers involved are likely to represent:

• Legal services/licensing section
• Environmental Health
• Building Control
• Housing
• Fire authority (statutory consultee)
• Chief Constable (statutory consultee)

11. The HMO guidance emphasises that, in terms of administration, to provide an effective service to the public, it is usually best to have a clearly identified team as a single point of contact for enquiries, applications, objections and complaints. Information from other council departments or partner agencies about suspected HMOs, or suspected breaches of conditions, could also feed into this point.

12. In view of the possibility of landlords requiring both a licence and planning permission, it is desirable for lines of communication to be established between the team responsible for HMO licensing and the council's planning department. There should be a co-ordinated approach to HMO policy across a local authority's housing and planning departments and their HMO licensing team.

STANDARDS AND LICENSING CONDITIONS

13. HMO licensing seeks to control standards in three main areas: the suitability of a property owner to be an HMO landlord; his management of the premises; and the physical condition and facilities of the accommodation. A licensing authority has discretion to set any reasonable conditions it thinks appropriate.

14. The HMO guidance stresses that good management by the landlord is vital if the aims of HMO licensing are to be achieved. Physical standards must be maintained, tenants' rights must be respected and any problems which arise during the period of the licence must be addressed effectively. Good management is also key to tackling the issues which most concern neighbours of HMOs, such as building maintenance, cleaning and noise or disturbance. For these reasons, licensing authorities are expected to give equal weight to both management issues and physical standards in deciding whether to grant, renew or suspend a licence.

15. The HMO guidance contains recommended licensing conditions, including that:

• the landlord must provide each tenant with a clear statement, in a form they can understand and keep for reference, of what is expected of them and what they can expect from the landlord;
• the landlord must take steps to ensure that the property, fittings and furniture, including fire precautions and gas and electrical installations, are maintained to the standard required throughout the period of the licence. Where the HMO is in a shared building, the licensing authority may also wish to emphasise the shared responsibility of the landlord for the maintenance of common parts, and of the tenants for their cleaning;
• the landlord must manage the property in such a way as to seek to prevent or deal effectively with any anti-social behaviour by tenants to anyone else in the HMO or in the locality of the HMO; and
• the landlord must provide tenants and adjoining neighbours with details of how they can contact him or his agent in an emergency, or with non-urgent complaints.

16. With particular regard to preventing or dealing with anti-social behaviour, as part of a landlord's tenancy management duties he or she must ensure as far as he or she is able that tenants conduct themselves in a way that does not cause nuisance or distress to any other person in the HMO or in the locality of the HMO. This should be made clear to tenants as part of the tenancy/occupancy agreement, and if a complaint is made to the landlord, he or she should take steps to deal with it. The local authority can help by engaging with landlords and providing information and advice on good management practice. If a complaint is made to the local authority by a neighbour of an HMO, the authority is expected to investigate and, if appropriate, request that the landlord take action. In deciding whether action is required, the authority should consider whether the behaviour about which a complaint was made would be unacceptable in any other, non- HMO household. Any approach to the landlord must be based on clear evidence that tenants of that particular property were responsible for the behaviour about which a complaint was made.

17. The actions open to a private sector landlord for the better management of anti-social behaviour include, for example, enforcing terms in the tenancy agreement, setting clear standards, advising tenants (for example on reducing noise nuisance), investigating complaints, requesting the local authority to initiate an Anti-Social Behaviour Order ( ASBO), providing information in support of ASBO proceedings, seeking an interdict, seeking possession at the end of the term of the tenancy or seeking possession on the grounds of antisocial behaviour.

18. The HMO guidance emphasises the importance of tenancy/occupancy agreements and recommends elements to be included in these agreements. These elements include:

• the respective responsibilities of the landlord and the tenant for cleaning, maintaining and repairing the property, fittings and furnishings; and
• that the tenant, and any person visiting the tenant, must not commit any form of harassment, or behave in a way that causes nuisance or distress, to any other person in the HMO or in the locality of the HMO.

The HMO guidance also mentions addressing physical aspects of the property in order to reduce noise.

HMO LICENSING AND PLANNING POLICIES

19. The HMO guidance contains an outline of the role of the planning system and the way it controls development, including changes in occupancy levels which constitute a change of use and the role of the Town and Country Planning (Use Classes) (Scotland) Order 1997 in relation to houses. For information and ease of reference, this is set out at the end of this annex.

20. Not all HMOs require planning permission. Planning permission is required only where a change of use is considered to constitute development under the terms of the Town and Country Planning (Use Classes) (Scotland) Order 1997. Class 9 relates to houses. Houses do not require planning permission for a change of use within the same use class where a family is living together, or where there are no more than five residents living together, including where care is provided for residents (see extract from the HMO licensing guidance for local authorities at the end of this guidance for further details.) This exemption does not apply to flats. Flats are outwith Class 9, and so consideration needs to be given as to whether use of a flat as an HMO constitutes development.

21. The HMO guidance also refers to the guidance in paragraph 57 of Scottish Planning Policy 1: The Planning System, on the interaction of planning and other statutory control regimes. It also points to planning decisions being required to be made in accordance with the development plan for the area unless material considerations indicate otherwise.

22. As far as development plan policies on HMOs are concerned, planning authorities should bear in mind the important role the HMO sector plays in providing residential accommodation for certain groups. Attention is also drawn to the requirements of the HMO licensing system.

23. While these points do not mean that the planning system can ignore issues which are addressed by the HMO licensing system, it is important for planning authorities to strike an appropriate balance in the level of control in their policies taking onboard the importance of HMOs in the housing market and the controls available under HMO licensing. When reviewing such planning policies, authorities should bear in mind that existing policies were probably drawn up when the planning system was seen as the only means of controlling HMOs, and may be more restrictive than is now necessary.

24. Some local authorities already operate planning policies which seek to limit the proportion of HMOs which can exist in a given area. Where such a policy does not already exist, and where it is considered appropriate, local authorities should develop policies relating to the maximum proportion of HMOs that should exist in any defined area (whether that is a building, shared stair, street, and so on). The maximum proportion of HMO accommodation should be based on considerations such as the local housing strategy (based on the factors discussed in section 1 of SPP3), the traditional tenure of the area, the potential impact of HMOs on the area in question, the need for HMO accommodation in the area, the availability of HMO accommodation elsewhere in the area and environmental factors. This is not an exhaustive list, and local authorities should consider all relevant factors when deciding whether or not to grant planning permission for use as an HMO. Local authorities should ensure that any such policies are well publicised to landlords and letting agents.

25. Where there are concerns over the potential behaviour of the landlord or tenants, such as maintenance or noise, planners should take account of the controls offered by HMO licensing, rather than seeking to control this through maximum proportions. They should also bear in mind that all kinds of people may live in HMO accommodation, and it is not necessarily the case that HMO residents would cause more disturbance than other types of household who might occupy the property.

26. Where a local authority decides that such a policy is not necessary, it should make clear the reasons for that decision.

Q5: Do you agree that local authorities should set policies to control the proportion of HMO accommodation in a given unit, where they consider this is necessary? How should maximum proportions be decided?

CO-ORDINATED ADMINISTRATION OF PLANNING AND LICENSING

27. Where both planning permission and an HMO licence are required, it is important to co-ordinate the approach and ensure that the features of each system are made clear to the applicant. These are separate regulatory regimes with different purposes, each of which has its own enforcement powers to deal with any breach. Planning authorities are reminded of the guidance in Circular 4/1998: The Use of Conditions in Planning Permissions (Paragraphs 6 and 20-22), regarding conditions in relation to matters subject to control under other legislation.

28. In cases where planning permission may be required, planning officers should advise applicants to also contact the HMO licensing section within the Council. Systems for sharing information between planning and HMO licensing teams should be established. Such arrangements should be reciprocal, since applications for HMO licences may also identify HMOs which require planning permission.

29. Planning permission cannot be taken into account when considering whether or not to grant an HMO license. Therefore, where a policy to limit HMO concentrations exists, it should be applied and enforced as a planning issue. It is not for the licensing authority to seek to limit HMO licenses to satisfy such a policy. When co-ordinating planning and HMO licensing procedures, including enforcement measures, it should be borne in mind that upgrading a property to HMO standards can be expensive, but, provided there are no pre-existing complaints from neighbours, it should be entirely within the control of the owner to meet the conditions for licensing. However, since planning deals with the balance of development in an area, factors outwith the owner's control may affect the granting of planning permission. It is understandably frustrating for an owner to do the necessary work to upgrade a property and obtain an HMO license, but then to be refused planning permission to operate. Local authorities should consider how they can provide a consistent and transparent service in the operation of these two systems and in the exercise of their enforcement powers.

30. Both planning and licensing applications include an opportunity for objections to be put to the authority. Neighbours need clear information similar to that provided to applicants, to explain the two systems and what matters each can control. This may help to avoid the situation where the same objections are made in respect of both applications, and to reduce the frustration felt by objectors when their arguments are rejected as not relating to relevant considerations under the system in question.

Q6: How do you think the planning system and the HMO licensing system can work together more effectively?

EXTRACT FROM MANDATORY LICENSING OF HOUSES IN MULTIPLE OCCUPATION: GUIDANCE FOR LICENSING AUTHORITIES

2-5.6 Planning

1. The planning system guides the future development and use of land in cities, towns and rural areas in the long term public interest. The aim is to ensure that development and changes in land use occur in suitable locations and are sustainable. Most people are aware of the need to obtain planning permission for new buildings, but the issue in relation to HMOs is usually change of use of existing buildings, which is perhaps less well understood.

2. Planning permission will be required if there has been, or is proposed to be, a change of use which, based on the circumstances of the case, constitutes "development" within the meaning of the Town and Country Planning (Scotland) Act 1997 ( the 1997 Act). If the present use of the property is a lawful use, e.g. it has been used for that purpose for more than a period defined in statute (currently 10 years), then such use would be immune from enforcement action.

3. Planning law provides that certain changes of use do not constitute development within the meaning of the 1997 Act. The Town and Country Planning (Use Classes) (Scotland) Order 1997 (the Use Classes Order) groups certain uses or types of uses into classes and provides that changes of use within a class are not "development", and therefore do not require planning permission. HMOs may fall into one of three classes - Class 7, Hotels and Hostels, Class 8, Residential institutions, or Class 9, Houses, or may fall outwith all these classes. Changes of use between classes are development for planning purposes and will therefore require planning permission.

4. Class 9, Houses, includes, among others, houses occupied by a single person, people living together as a family and up to 5 people living together, including a household where care is provided for residents. If the occupation of a house changed from family use to an HMO with no more than 5 occupants, there would therefore be no requirement to obtain planning permission for a change of use on that ground alone. However, a change from a family home, however large the family, to a house with more than 5 occupants who do not form a family, may represent a change of use constituting development, depending on the circumstances of the case. Where development was involved, and the multiple occupation was not a "lawful use", planning permission would be required.

5. Flats are outwith Class 9 and consideration would need to be given as to whether any increase in the number of occupants of a flat would constitute development for the purposes of the 1997 Act and therefore require planning permission.

6. Article 4 of the Use Classes Order provides that sub-division of a house to form 2 or more separate houses constitutes development requiring planning permission.

« Previous | Contents | Next »