This post by David Smith was first published on the Anthony Gold website.
The MHCLG has updated its guidance for local authorities in England on the changes to HMO mandatory licensing.
This is a little odd as the mandatory licensing changes came into force in October 2018 and so local authorities should already be very clear about them. There should not really be much need for guidance on implementing that change now, fully a year later.
According to the update link on the MHCLG website, they have updated section 2.7.
Actually, they haven’t, it is section 2.6 that has been changed. However, the updates section of government websites has been known to be unreliable for some time and so this error is comparatively small compared to some.
Planning permission and HMOs
The change is a small paragraph regarding planning permission. A number of local authorities require HMO landlords to apply for planning permission and landlords with more than 6 people living in their property will need planning consent anyway.
There has been a long period of uncertainty about whether an HMO licence can be refused if planning permission has not been granted but this was resolved by the Upper Tribunal at the end of 2017. The Tribunal ruled that a property licence could be issued for a shorter period if planning permission had not been obtained.
The new guidance simply states that local authorities are encouraged to ensure planning consent has been given before a licence is granted. It also encourages them to try to pursue the planning process in parallel with the licence grant process.
This is all a little odd.
There is the question of whether it is appropriate to use guidance to procure an effect which should really be dealt with in the legislation. If Parliament had intended to tie together planning and licensing, and there are good arguments why they should, then they should have done so.
It is not really appropriate for the MHCLG to bring this in by the back door. In addition, it totally ignores the situation on the ground.
The problem
The increased licensing requirements are leading to a massive backlog in licensing applications with many local authorities taking a year or more to process them. Placing the planning process alongside this is slightly improbable given that it is rare for it to take so long.
As against this local authorities are very reluctant to grant planning consent for HMOs and planning officers often skirt the edges of illegality by telling potential applicants not to bother applying as they will inevitably be refused.
None of this is dealt with in the guidance note and the MHCLG should perhaps deal with the process in the round rather than making half-hearted interventions in guidance that is not likely to be read.
But if you want to read it, you will find it here.