Building control for HMOs, no need for noise insulation

In this article we will discuss

How building control can be enforced for a conversion from C3 to C4 ( this is assuming that building control is required for such a conversion)
We will show how the law does not require building regulations when a change of use occurs from class C3 to class C4 small HMO takes place.
We will show how the rooms in an HMO are not classed as “rooms for Residential Purposes”.

1 Conditions to enforce building regulations compliance. If the use as an HMO is prior to 2022 than even if building control were required, any enforcement period has already expired. For building control to be enforced, this needs to be done through the magistrate. The council needs to prove: 1 the conversion has taken place recently 2 the recent conversion does not comply with the relevant building regulations at the time. 3 a material change of use has taken place that triggers building regulation compliance. All three conditions not only need to be satisfied but also proven beyond reasonable doubt in court for successful enforcement. In this case, the burden of proof rests with the council.

2 The change of use from a building control point of view according to several building control officers change of use from class C3 to Hmos (both class C4 and Suigeneris HMOs) never takes place since both class c3 , c4 and sui generis Hmos are all considered dwelling-houses. If it can be proven that the current interpretation of the legislation confirms that class use c3, c4 and sui generis HMOs are all considered dwellinghouses any conversion from c3 to c4 does not constitute change of use from a building control stand point. Additionally if HMOs benefit from the same permitted development rights of class c3 dwellinghouses, then this is yet another indication that c3, c4 and sui generis Hmos are all still dwellinghouses. Therefore, converting from a dwelling house to dwellinghouse does not constitute change of use from a building control stand point. Whilst there are some building control officers stating that according to their interpretation, a suigeneris HMOs may not be considered a dwellinghouse (although this is considered as such by several councils in England and the high courts), the consensus among building control officers is that undoubtedly Small HMO ut t0 6 people are still dwelling-houses and therefore thermal insulation , sound proofing etc are not required in any case. This is also quite logical because the costs of sound insulation and thermal insulation all throughout the house including party walls would be so prohibitive in most circumstances that would also render most projects not financially viable. The change of use may occur instead if the dwellinghouse is converted into flats, this is where building control is triggered.

3 When material change of use is triggered from a building control point of view. The document of the NElincs fails to recognize that the HMO is a dwellinghouse. Hence part E noise testing is not applicable. This is the case since c3 to c4 change may constitute a change from a planning perspective but not from a building control perspective. Both c3 and c4 use are classed as dwelling-houses as we will see later on.

It is not all class use changes that triggers compliance with building regualtions. The law defines specifically when a change of use materially occurs from a building control standpoint. Therefore a change of use can occur from a planning perspective but may not necessarily also from a building control point of view.

The following legislation states when a material change of use is triggered, which requires compliance with building regulations:

https://www.legislation.gov.uk/uksi/2010/2214/regulation/5

Any other change of use do not trigger compliance with building regualtions.

As we can see no mention is made to a change of use from any class use to an HMO. This is because as we know HMS are usually classed as dwellinghouses.

4 A room in a dwellinghouse is not a room for residential purposes.

2.—(1) The Building Regulations 2000(1) (“the principal Regulations”) are amended as follows.

(2) In regulation 2(1) (interpretation) after the definition of “public body’s notice” insert—

““room for residential purposes” means a room, or suite of rooms, which is not a dwelling-house or flat and which is used by one or more persons to live and sleep in, including rooms in hotels, hostels, boarding houses, halls of residence and residential homes but not including rooms in hospitals, or other similar establishments, used for patient accommodation;”.

This is an excerpt from https://www.legislation.gov.uk/uksi/2002/2871/regulation/2/made

It is important to reasd the above , because on its own the interpretation of this legislation seems to infer that the room IN a dwellinghouse since it is used to live and sleep in therefore it becomes a room for residential purposes even if it is a C3. This is the reason for the clarification document made by the government found in point 5 below.

The “live and Sleep” is very important because both conditions have to be true for a Room to be classes and “room for residential use”.

The “live and sleep” in the room test has to be satisfied for a room to be classed as “room for residential purpose”. This condition is not satisfied in single family dwellinghouses, small HMO dwelling-houses and also Sui generis HMO dwellig-houses. This is due to the presence of living rooms and /or dining rooms where the “living” take place.

In an HMo in fact there is always separate living room, Threofore also for this reason the Rooms in an HMO as clarifies in point 5 dwellinghouses are NOT considered as “rooms for Residential Purposes. This is because both conditions are not satisfied in an HMO.

This condition may be satisfied if the Hmo in a dwelling house does not have a living room or dining room. This rarely happens in Hmos in Dwellinghouses. However as clarified in point 5 this condition of living and sleeping in the room are usually satisfied in hotels, hostels, boarding houses , hall of residents etc, vehere people live and sleep in the rooms.

5 The guidance document confirms that rooms in an HMO (dwellinghouse) are not considered as rooms for residential purposes. Download the formal government document here . This document corroborates the position that HMOs are regraded as dwelling houses. In this guidance If the HMO is similar to a single family home the rooms do not fall into the remit of part E from a building regs point of view. See on page 6 “Rooms or suites of rooms in HMOs which are not hotels, hostels, boarding houses, halls of residence, residential homes or similar are therefore unlikely to be rooms for residential purposes as defined in the Building Regulations. It is not possible to give definitive guidance, but it is unlikely for example that bedrooms in a HMO which consists of a single family dwelling-house which is shared by a small group of students could be regarded as rooms for residential purposes“. This once again reinforces the interpretation as we will see below that HMOs that are made from dwelling houses are still considered dwelling houses. This is the reason for part E testing and compliance not being a requirement. And as it is applicable in our case rooms in our HMOs are not hotels, hostels, boarding houses, halls of residence, residential homes or similar, Therefore, part E testing is not applicable. More broadly, according to this official document part E compliance, is not required because there is no conversion, HMOs are still dwellinghouses. In particular, rooms in HMOs that are considered by law as Dwellinghouses are not “rooms for residential purposes”. In the example it is clear that reference is made to a C4 class, this is because a group of students are constituting different separate households, whilst living in a “dwelling-house”. The use of “single family dwellinghouse” in particualt the fords Single Family.is in contracddiction with the definition og HMO where the dwellinghousehouse is not occupied by a single family, this is in errors becaus eit cannot be true that a dwellinghouse ifs single family while being used as an HMO. The error is very likely made as a “habit of language” for esmaple instead of saying “conspuracy people say “conspiracy …theory” as a matter of habit. In this case the dwelling-house is coupled with the word single family but the reference is clear to the word dwellinghouse,. This is because as we know HMos are still dwelling-houses by consolidated interpretation of the law.

Also if an argument is made the the rooms in an HMOare the same as hotels , meaning in a short-term let, this is contradicted by the fact that HMO room contracts are normally shorthold tenancy agreements. In totems eviction does not require an eviction court order , whereas a court order is required to evict a tenant lawfully from an HMO.

Proof of consolidated interpretation of the Legislation of HMos as Dwellinghouses.

As we can see below, a c4 class use HMO as a consolidated interpretation of the law is in fact considered a dwelling-house and so are larger sui generis HMOs.

To see that HMOs are OFFICIALLY considered dwelling-houses and HMOs do benefit fromt he same PD right as any other dewllinghouse please refer to:

1 .Email from Nottingham council. This confirms how from their point of view a Sui generis 8 bed HMO is still a dwellinghouse and it benefits from all PD rights of any other dwelling-house including C3 class. This is a view shared by most councils in England and Wales. Threfore from a building regulation standpoint there is no change of use from c3 to c4 or sui generis HMo since they are all dwelling houses.

The following is confirmation of the classification of an HMO class C4 as a dwellinghouse and this email also confirms that a mere conversion from C3 to C4 does not trigger Building regulation compliance.

This email below also confirms that a mere conversion from C3 to C4 does not trigger Building regulation compliance. As we will see the change of use from C3 to HMO in itself does not trigger building regulation complaince. Therefore if building works are not carried out (that do not trigger building reguialtion compliance) there is no requirement for building control. For example if the conversion is done my simply renting the rooms out (provided fire reg is complied with) and no building work is carried out then conversion cina be carried out without the involvement of building control.

This email below also confirms that a mere conversion from C3 to C4 does not trigger Building regulation compliance.

This email below also confirms that a mere conversion from C3 to C4 does not trigger Building regulation compliance. However certain types of building works could depending if they are foundation works, structural works etc.

more below

2 The following lawful use – 6 Colwick Road was granted using the 4 year rule for dwellinghouses. Yet another proof that not only c4 small hmo are considered dwellinghouses but also very large sui generis too. This is in line with point 1 above.

3 not only are most councils of the opinion that c4 and sui generis HMOs are dwelling-houses, but this is confirmed by a recent high court ruling.

The relevant point here is that in considering the challenge, the High Court applied the test set out in Gravesham Borough Council v Secretary of State for the Environment (‘the Gravesham test’); the High Court concluding that an HMO is indeed a dwellinghouse.

This now makes the classification of HMOs officially as dwelling-houses, this document is accepted as the official interpretation by all courts in England and Wales. https://www.bailii.org/ew/cases/EWHC/Admin/2022/2051.html London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] E

More evidence can be gathered proving that HMOs are classed as dwelling houses but we believe the ones above are sufficient.

The law clearly defines them HMOs of any size still as Dwellinghouses irrespective of the type of occupation. The use c3 , c4 and sui generis HMOs are all as dwellinghhouses.

For more on classification of HMOs as dwellinghouse click here