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Holiday lets may be a change of use

Planning expert Martin Goodall explores whether planning permission may be required for a change of use for large holiday properties which are used for house parties.

As the recession continues to bite, owners of second homes have been generating additional income through letting out these properties for holiday use. However, care needs to be taken by owners to ascertain whether planning permission may be required for a change of use, particularly for large properties which are used for house parties.

A case involving a large holiday home with eight bedrooms recently reached the Court of Appeal, where it was determined that the owners should have obtained permission for a change of use. The judgment inMoore v. Secretary of State for Communities and Local Governmentwasdelivered on 18 September 2012.

The question for the Court was whether a dwelling let out for short-term holiday or leisure use is still a single private dwellinghouse within Use Class C3 of the 'Use Classes Order'. On the basis of previous decisions, the Court rejected the notion that use as a holiday let can neverbe regarded as falling within Use Class C3; but the Court was equally clear in rejecting the proposition that use as a holiday let of a property which might normally be described as a dwellinghouse must alwaysfall within Class C3. In other words, each case depends on its own facts - it is "a matter of fact and degree".

The starting point for the definition of a dwellinghouse in this context isGravesham BC v. Secretary of State for the Environment (1984) - a case in which planning permission had been given for a "weekend and holiday chalet" but which was being used as a dwelling on a permanent basis. It must be a building which ordinarily affords the facilities required for day-to-day existence. If it meets that test, it is a dwellinghouse. However, the case on which the appellant in this latest case primarily relied wasMoore v. Secretary of State for the Environment(1998) [no relation, and unconnected with the present case]. In that case, the outbuildings of a large country house had been converted into 10 single self-contained units of residential accommodation for the purpose of holiday lettings. Nine of the units were in use by May 1991. In May 1995 the Local Planning Authority issued an enforcement notice alleging a material change of use from residential to mixed use for residential and as 10 units of holiday accommodation. If the change of use of each of the units was a change of use to a single dwelling, then the enforcement notice was not served within the 4-year time limit prescribed by section 171B(2) of the Town and Country Planning Act 1990.

In the appeal against the Enforcement Notice in that case, the inspector had found as a matter of fact and degree that each unit was self-contained and was supplied with the facilities necessary for daily life, including living, sleeping and eating space, kitchen, bathroom and WC. The units were each available for short term lets. However, he concluded that they were not used in the normal sense as independent residential units. Their use for holiday accommodation was, in his opinion, materially different to the use of premises by a household as a long term home. The High Court rejected an appeal against this decision, but the Court of Appeal overturned the Secretary of State's decision. The Court accepted the approach taken inGravesham, and held that there is no requirement that before a building can be described as a dwellinghouse it must be occupied as a permanent home.

In the present case, the Court of Appeal held that whether the use of a dwelling for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. The inspector was entitled to find in this case (as a matter of fact and degree) that the way in which the property was being used fell outside the definition of a C3 use in the Use Classes Order.

What made this recent case unusual was the fact that the dwelling in question was very large (with 8 bedrooms) and could accommodate as many as 20 guests at any one time. Large groups of people (who were not family groups) stayed there, with all the associated comings and goings, vehicular movements and parking, and the noise and general disturbance inevitably associated with such a use. It was undoubtedly this factor that prompted the Local Planning Authority to take enforcement action, and which led to a finding of fact on the part of the Inspector that a material change of use had taken place.

Whilst no hard and fast rule can be laid down, it is reasonably safe to assume that a holiday let comprising accommodation which would sleep, say, up to to 6 to 8 people, and is therefore likely to be occupied by family groups who, during their stay, constitute a single household, will in all probability still fall within Use Class C3, and so there will be no material change of use where the property was previously used as a family home. However, if the property is more in the nature of the property in the recent Suffolk Coastal (Moore) case, with a larger number of guests staying at any one time, then this may well constitute a material change of use to a sui generis use (a use of its own kind). Where such a change of use has occurred, it will be the 10-year rule (not the 4-year rule) that will apply in relation to any claimed immunity from enforcement.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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