HMO Overprovision policy

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Revised Supplementary Guidance SG05 & Overprovision Policy

Houses in Multiple Occupation

Stirling Council Local Development Plan October 2015

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Revised Supplementary Guidance SG05 & Overprovision Policy

Houses in Multiple Occupation - October 2015 1. Introduction 1.1 The purpose of this Supplementary Guidance (SG) is to expand on Local Development Plan Policy 2.3 – Particular needs housing and accommodation, part (e) of which is related to Houses in Multiple Occupation (HMO). Inparticular, this SG provides the locational criteria with which planning applications for HMO should comply, as specified in criterion (e)(iv) of Policy 2.3. This guidance also outlines Stirling Council’s Overprovision Policy in relation to the licensing of HMOs and describes the respective roles of planning and licensing in the management of such properties.

1.2 The Council recognises that Houses in Multiple Occupation (HMOs) are a key element of the private rented sector, which itself plays a significant role in meeting housing needs. This sector, including HMOs, provides a degree of flexibility not available in the owner occupied and social rented sectors. The demand for HMO accommodation is particularly high in Stirling from students, young professionals and people working away from home. However, it is also recognised that concentrations of HMOs can in some instances lead to a range of cultural, social, physical and economic changes in a community. The range of potential problems associated with high concentrations of HMOs can include: • Changes in the demand for services, altering the availability of services provided; • Increased competition for private houses, consequential rises in house prices, and reduced availability for non-HMO residents; • Areas of high HMO concentrations can become unpopular with non-HMO residents, altering the community; • Potential physical deterioration caused by lack of investment by absentee landlords; • Increased population density, resulting in an increased demand on services, infrastructure and on-street parking provision; • A high number of transient residents leading to less community cohesion.

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1.3 ‘Serving Stirling’1 sets out the objectives which form the political priorities of Stirling Council’s partnership administration. In view of the issues arising from concentrations of HMOs within certain areas of Stirling, the priorities include tightening the regulation of HMOs and reducing the number of HMOs in the town centre. The Council is therefore proposing to revise SG05 and to introduce an HMO Overprovision Policy pursuant to Section 131A of the Housing (Scotland) Act 2006.

1.4 Within the Stirling City area, the demand for accommodation within Houses in Multiple Occupation is mostly for student accommodation and, in the rural areas, to support the tourism and agricultural sector in providing staff accommodation for seasonal workers. At 22nd May 2015 there were 381 licensed Houses in Multiple Occupation purpose built for student accommodation, providing capacity for 2,405 bed units and a further 321 licensed Houses in Multiple Occupation with a further 1,346 bed units.

1.5 The policy on the provision of Houses in Multiple Occupation in the Stirling Council area set out in this guidance seeks to avoid concentrations of Houses in Multiple Occupation in view of the problems such concentrations can create in the areas they are arise. It is considered that number of licenced Houses in Multiple Occupation in Stirling, the ever increasing private rented sector and approved purpose built student accommodation developments that are either under construction and/or awaiting development – plus the stated exceptions to the policy – can meet the current and predicted future demand for affordable, high quality rented accommodation. It is intended that the demand and affordability of rented accommodation in the Stirling Council area and the impact that the adoption of House in Multiple Occupation Overprovision policy may have will be reviewed after a period of 12 months.

1. http://www.stirling.gov.uk/__documents/temporary-uploads/chief-executives-office/serving-stirlingpriorities-for-stirling-council.pdf

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2. The role of Planning and Licencing in HMO 2.1 The Planning and HMO licensing systems are two separate regimes with distinct functions and objectives. Scottish Government Planning Circular 2/2012 Houses in Multiple Occupation: Guidance on Planning Control and Licensing2 encourages local authorities to take a coordinated approach to the planning and licensing of HMOs, with joint working between planning and licensing teams and other relevant departments. This revised SG and Overprovision Policy have been jointly developed by the Planning Service and the Housing Service and its implementation will be administered through joint working between services to ensure consistency and that information on the location of HMOs is shared.

Requirement for Planning Permission

2.2 The formation of a HMO does not always require planning permission – only where use as a HMO would constitute a ‘material change of use’ is permission generally required. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.

2.3 Circular 2/2012 states planning authorities may provide guidance as to occupancy levels for individual HMOs that would be considered to be a material change of use. With reference to the Town and Country Planning (Use Classes) (Scotland) Order 1997 and The Town and Country Planning (General Permitted Development) (Scotland) Order 2011, the formation of an HMO in the following circumstances will be deemed to be represent a material change of use for which planning permission will be required: • Formation of HMOs in Houses: The Town and Country Planning (Use

Classes) (Scotland) Order 1997 defines a house (Class 9) as being the sole or main residence of a single person, or any number of persons living together as a family, or not more than 5 residents living together as a single household. By encompassing ‘households’ of less than 6 people, Class 9 includes people living together under arrangements

2. http://www.gov.scot/Resource/0039/00396049.pdf

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for providing care and support within the community and other groups of people including students, not necessarily related to each other, but who choose to live on a communal basis as a single household.

Where there is an increase in the number of residents, resulting in six or more residents living within a house falling within the definition of an HMO under the Housing (Scotland) Act 2006 a material change of use of the property will be deemed to have taken place and the property will no longer be considered to fall under Class 9 of the Use Classes Order.

Planning permission for the formation of an HMO will therefore be required. • Formation of HMOs in Flats: A flat is defined in The Town and

Country Planning (General Permitted Development) (Scotland) Order 1992 as a separate and self-contained set of premises whether or not on the same floor and forming part of a building from some other part of which it is divided horizontally. Flats are distinct from houses and are classed as Sui Generis within the Use Classes Order.

Where there is an increase in the number of residents, resulting in three or more residents living within a flat falling within the definition of an HMO under the Housing (Scotland) Act 2006 a material chance of use of the property will be deemed to have taken place and planning permission for the formation of an HMO will be required.

In determining the use of a flat as an HMO, it is a matter of fact and degree whether the nature of the use is materially different from that of a family flat. It is considered that three or more persons from three or more families in a flat is materially different from family use on account of the more independent lifestyles of occupants which, it is considered, can have an adverse impact on residential amenity.

• Formation of HMOs in other buildings: The conversion of hotels and

hostels class (Class 7), including hotels and boarding or guest houses; residential institutions (Class 8); or buildings used for any other use to an HMO will require planning permission.

2.4 Planning permission is required for the formation of HMOs in houses or flats as defined above where properties are being proposed for HMO use for the first time only, except where it is proposed to intensify an existing HMO use (i.e. the number of rooms), in which case planning permission may be required.

Properties that have in the past operated as HMOs with planning permission and/or a licence, but where the property has, in the intervening period, not operated as an HMO and/or the licence has expired, may also require planning permission if it is deemed there has been an intervening use.

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Planning Considerations 2.5 Where planning permission is required for the formation of an HMO, the key consideration for the planning authority is the impact the change of use would have on the residential amenity of the surrounding community. Relevant considerations include: parking and road safety; the management and storage of waste; and the maintenance of external spaces including garden ground.

Concerns about the behaviour of HMO tenants, however, are not something that can be taken into account in determining a planning application.

2.6 Where concentrations of HMOs are considered to be having a negative effect on the amenity of a community, or where it is considered likely that such a situation may arise, planning authorities may adopt policies to manage HMO concentrations. This SG sets out Stirling Council’s policy for managing the concentration of HMOs, revising the policy that was adopted alongside the Local Development Plan in September 2014. Section 3 outlines the locational criteria that will be applied to the determination of planning applications for HMO within the Local Development Plan area (i.e. Stirling Council excluding Loch Lomond and the Trossachs National Park).

Licensing of HMOs 2.7 The licensing of HMOs operates under the Housing (Scotland) Act 2006, Part 5, which came into effect in August 2011. The purpose of HMO licensing is to ensure that accommodation is safe, well managed and of good quality. Before granting a licence the local authority must be satisfied that the owner and any manager of the property is fit and proper to hold a licence; that the property meets required physical standards and provision of amenities; the property meets the required fire safety standards; that there is effective day to day management arrangements in place and that it is suitable for use as an HMO or could be made so by including conditions in the licence. The local authority can also include any other conditions to the granting of a licence as deemed appropriate.

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2.8 The definition of what constitutes an HMO in terms of the requirement for a licence is defined in the legislation. Living accommodation is an HMO within the meaning of the Housing (Scotland) Act 2006 if it is occupied by three or more persons from three or more families; and occupied by them as their only or main residence; and either a house, flat, premises or a group of premises owned by the same person with shared basic amenities.

2.9 Under Section 129A the Housing (Scotland) Act 2006, the Council will refuse to consider a HMO licence if it considers that occupation of the accommodation as an HMO would be carrying out development without the required planning permission or a failure to comply with a condition of limitation of an existing planning permission. This provision is intended to complement planning enforcement powers.

2.10 The Council also has the discretionary power under Section 131A of the Act to refuse to grant a HMO licence if it considers that there is, or that the grant of a licence would, result in overprovision of HMOs in the locality, as defined by the Council. To this effect, the Council is proposing to adopt an Overprovision Policy (see Section 4 and Appendix 1) to control the concentration of the HMOs in the Castle, Stirling East, Stirling West and Dunblane & Bridge of Allan multimember electoral wards. 3

Summary Table 1 - Requirement for HMO Licence and Planning Permission Type of Property

Flat or House

Flat

House

House

1 or 2

3 or more

3-5

6 or more

HMO Licence

m

l

l

l

Planning Permission

m

l

m

l

No. of Occupants

3

m not required l required 3. Refers to unrelated occupants only The number of occupants is taken to exclude the owner of the HMO if he or she lives within the property as their main residence and lets out rooms.

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3. Planning Applications for HMO 3.1 Where planning permission is required for the formation of an HMO, proposals will be required to adhere to Policy 2.3 of the Local Development Plan – Particular Needs Housing and Accommodation, part (e). The aim of Policy 2.3 is to support HMO accommodation in appropriate locations, but also to prevent the creation or exacerbation of concentrations in particular areas in order to protect residential amenity. Policy 2.3 and the locational criteria with which HMO proposals should comply, as specified in criterion (e)(iv) of Policy 2.3, are noted below:

Policy 2.3: Particular Needs Housing and Accommodation

(a) All new residential developments should consider and provide for particular housing needs where evidenced through local area analysis on housing needs.

(b) It is preferable that all new housing be built to ‘varying needs’ or ‘lifetime homes’ standards to support independent living, be accessible to as wide

a range of people as possible, and allow the potential for future adaptation.

(c)

Development providing particular needs accommodation should be located within residential areas where residents have a realistic choice of access to local services and facilities. Out with these areas, accommodation will only be supported where the need for such accommodation in the locality is justified, a good accessible residential environment can be secured, and other appropriate locations are not available.

(d) There will be a presumption against the further provision of private nursing or residential care home accommodation unless it supports the Council’s strategy for ‘Reshaping Older People’s Care’ which moves away from

institutional care to more flexible home based care in suitable housing. In determining applications for such accommodation, consultation will be undertaken with the Council’s Head of Social Services and NHS Forth Valley.

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(e) The formation of Houses in Multiple Occupation (HMOs), including new

build and changes of use (but excluding purpose-built student accommodation), will be controlled in order to protect residential amenity.

Proposals will be supported where:

i)

ii)

iii)

iv)

It can be demonstrated that suitable in-curtilage waste and recycling storage space will be provided; Parking or road safety problems will not be created or exacerbated; Appropriate maintenance arrangements are in place for any external spaces / garden ground associated with the HMO; and The locational criteria set out in SG05 can be met.

SG05 Locational Criteria In addition to criteria i) to iii) set out in Policy 2.3, part (e), above, proposals for the formation of Houses in Multiple Occupation (HMOs), including new-build and changes of use (but excluding specialist supported/intermediate accommodation provided by or on behalf of public agencies and purpose-built student accommodation) will be supported where:

Within the combined boundary of the Castle, Stirling East, Stirling West and Dunblane and Bridge of Allan electoral wards:

A. the concentration of HMO when taking account of the proposal would be 1% or less;

OR elsewhere within the Local Development Plan Area:

B. concentration of HMO within the relevant Census Output Area when taking account of the proposal would be 5% or less;

Within existing blocks of flats (including tenement buildings, large houses which have been converted into flats, high rise blocks and ‘four in a block’ buildings):

C. the number of HMO when taking account of the proposal would be 25% or less of the residential properties within the block.

Proposals within blocks of flats must comply with part C and A or B as appropriate.

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3.2 Census Output Areas are areas defined by the General Register Office for Scotland for the purposes of producing and publishing census results. They are the smallest area for which census data is freely available, and are built up from postcodes to include around 50 households. This SG uses Census Output Areas from the 2001 Census and they have been selected in order to assess concentrations as they are easily identifiable and small enough to reflect localised issues.

3.3 Applications must be in accordance with all relevant policies of the Local Development Plan. Listed Building Consent may also be required if any alterations are required to be made to a Listed Building, including in order to meet licensing requirements. Information on Listed Building Consent can be obtained from the Conservation Officers within the Planning Service.

4. Summary of Controls on Overprovision 4.1 Stirling Council will seek to manage the overprovision of HMOs across the Stirling Council area through the adoption of an Overprovision Policy (Appendix 1), in relation to applications for HMO licences under the Housing (Scotland) Act 2006 and in relation to applications for planning permission to form new HMOs, through Policy 2.3, part (e) of the Local Development Plan and this SG, specifically the locational criteria A, B and C set out at paragraph 3.1.

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5. Contacts 5.1 Before progressing with a proposal for a HMO it is strongly recommend prospective applicants contact the Council first in order to determine whether planning permission is required and the current concentration of HMOs within the relevant Census Output Area:

Planning: Planning Services Corporate Operations Stirling Council Teith House Kerse Road Stirling FK7 7QA

Tel: 01786 233660 Email: planning@stirling.gov.uk Housing: Private Rented Housing Team Housing Services Stirling Council Allan Water House Kerse Road Stirling FK7 7SG Tel: 01786 237678 Email: hmo@stirling.gov.uk

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Appendix 1 Overprovision Policy On 31st January 2012 new powers were introduced that allow the local authority as the local licensing authority for Houses in Multiple Occupation (HMOs) to refuse to grant an HMO licence where it considers there is overprovision in an area. These new powers were included in the Private Rented Housing (Scotland) Act 2011.

With a view to preventing excessive concentrations of Houses in Multiple Occupation in any area of the city centre, and elsewhere in the Stirling Council area, the Council have adopted a policy on the overprovision of HMOs. This policy in conjunction with Supplementary Planning Guidance provides a cohesive and complimentary regulatory control of concentration levels of Houses in Multiple Occupation.

This policy is to the effect that where the concentration of HMOs within the combined boundary of the Castle, Stirling East, Stirling West and Dunblane & Bridge of Allan electoral wards, as defined, is in excess of 1% of qualifying residential properties within the combined area, or if located out with these electoral wards, if the concentration of HMO’s in the relevant Census Output Area exceeds 5%, the Planning & Regulation Panel will consider this to amount to overprovision of HMOs and may refuse a licence.

This HMO Overprovision policy will apply to all first time HMO applications across the Stirling Council area irrespective of whether planning consent is required or not, with the exception of those exemptions set out in this policy.

This policy will also apply to those areas of Stirling Council that are covered by the Loch Lomond & Trossachs National Park Planning Authority irrespective of whether the Planning Authority grant planning consent, where applicable.

The provision level will be verified as at the date that a valid first time HMO application is submitted. For any cases referred to the Planning & Regulation Panel for determination, the Panel will consider the application on the basis of the verified provision level and any other relevant information provided.

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Applicants should be aware that the default position of the Council will be to refuse a first time HMO application if the application would breach the HMO Overprovision policy but every application will be considered on its merits. It will be for the applicant to determine whether they wish to submit an application and where necessary to seek to convince the Planning & Regulation Panel that there are circumstances in their case which would justify the policy not being applied.

Exemptions from the Policy 1. Applications for specialist supported/intermediate accommodation provided by or on behalf of public agencies; 2. New-build, purpose built HMO accommodation such as student residences; 3. Competent renewals of existing licenses will be exempt; 4. Existing licensed properties that change ownership and the new owner submits a competent application within one month of the change of ownership, as evidenced by date of entry on the Land Certificate, all in accordance with the Housing (Scotland) Act 2006 (s.136) will be exempt. Where a new owner of an existing licensed HMO premises fails to comply with s.136 of the 2006 Act, any HMO licence application will be deemed to be a first time HMO application and the HMO Overprovision policy will be taken in to consideration when determining such an application and the local authority may refuse to grant an HMO licence.

Determination Process Applicants are advised to contact the Private Sector Housing Team to discuss any proposed first time HMO application in order that the application of the HMO Overprovision policy can be considered.

Determination of all first time HMO applications and renewal applications will be determined by Officers under delegated authority powers. If there are any valid objection(s) lodged by neighbouring proprietors to a first time HMO application or a renewal application, or if Officers have concerns regarding the standard of the property, the effective management of the property or the landlord(s) and/or Managing Agent being a ‘fit and proper person’, the application will be referred to Stirling Council’s Planning & Regulation Panel for determination.

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Where a valid first time HMO application is submitted and this application would result in the concentration of HMOs exceeding the levels set out in this policy, the applicant will be informed in writing that the application breaches the HMO Overprovision policy and this will be the grounds for refusing the first time HMO application. The applicant will advised that should the applicant believe that there are exceptional circumstances as to why the HMO Overprovision policy should not be applied, the applicant will have 28 days from the date of the letter to request that the application be referred to the Planning & Regulation Panel. It will be for the applicant to seek to convince the Planning & Regulation Panel that there are exceptional circumstances to their application that would justify the HMO Overprovision policy not being applied to the applicant’s first time HMO application. Should the applicant fail to submit in writing a request for referral within the 28 day period, the application will be formally refused in writing and the letter of refusal will set out the ground(s) for refusal.

Planning & Regulation Panel Where more than one first time HMO application is received within the same area covered by the HMO Overprovision policy, they will be considered in the order that the applications were lodged. Applications that require to be determined by the Planning & Regulation Panel will only be submitted to the Panel once the subject premises are fully compliant with the required standards for HMOs. If the subject premises do not meet the required standards by the deadline set by the Enforcement Officer, this will be grounds for the application to be refused.

HMO Licence Fee Refund Policy In the event that an HMO license applicant withdraws their application prior to the application being determined or if the HMO license application is refused, the applicant will be entitled to a refund of 30% of the licence fee paid with the application. If an existing HMO licence holder voluntarily revokes their HMO licence, the licence holder will be entitled to a refund of 10% of the licence fee paid if the current license has a minimum of 12 months to run before the due expiry / renewal date.

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Appeals An HMO applicant has the right to appeal to the Sheriff if an HMO licence application is refused or if granted, the applicant can appeal against any conditions attached to the granting of a licence. The HMO applicant must first exhaust any appeals process with Stirling Council before lodging an appeal with the Sheriff within 28 days of the local authority’s final determination being made. The decision of the Sheriff can be further appealed to the Sheriff principal within 28 days of the Sheriff’s decision.

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Appendix 2 Castle, Stirling East, Stirling West and Dunblane and Bridge of Allan electoral wards.

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Further Information Please contact:

Planning Services Corporate Operations Stirling Council Teith House Kerse Road Stirling FK7 7QA Telephone: 01786 2 33660 E-mail: LDP@stirling.gov.uk www.stirling.gov.uk/localdevplan

If you need help or this information supplied in an alternative format please call 0845 277 700.

Stirling Council Viewforth Stirling FK8 2ET email: info@stirling.gov.uk text: 0771 799 0001 phone:180845 277 7000 web: www.stirling.gov.uk

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