Planning law: Consequences for Homes for Ukraine

What is the ‘Homes for Ukraine’ scheme?

The “Homes for Ukraine” scheme was announced on 14 March 2022 by the Secretary of State for Levelling Up, Housing and Communities, Michael Gove. The scheme allows UK property owners (including individuals, charities, businesses and faith and community groups) to volunteer a room or self-contained property for an identified Ukrainian national and their immediate family to live in for a minimum of six months. The scheme will also offer a three-year visa to recipients, along with healthcare, benefits, employment and education support and English tuition.

While property owners considering offering their property for this scheme are unlikely to be considering the planning position of such an offering, this article considers some points for owners to be aware of which may merit either seeking some comfort from the local planning and HMO licensing authority, or some clarification from the Government in terms of the flexible application of the planning and HMO licensing regimes to facilitate the Homes for Ukraine scheme and ensure its success.

What are the planning consequences for the ‘Homes for Ukraine’ scheme?

The first point to emphasise is that the situation is a fast moving one, as this scheme is described as phase one, with future phases possibly to include a service matching hosts with refugees, potentially with some amendment of the rules too. Additionally, whilst there is a Government FAQs¹ page online, this states that there will be “detailed guidance” on the scheme in the “coming days”. However, the good news is that based on the current information available, there seem to only be two key planning considerations for this scheme, which will be familiar to residential landlords.

The primary issue is whether the property would require a licence and planning permission to provide a house of multiple occupation (“HMO”). There is no detail currently on whether multiple families or individuals would be housed together or if each family would have its own home, or a combination of both as resource and need dictates. There is a reference in the FAQs to hosts receiving payment to “accommodate one or more household (subject to the accommodation they have)”, and whilst it is unclear precisely what that means, it does suggest that multiple Ukrainian households could be accommodated in a single property.

To determine if planning permission is needed for a HMO use, the host must first consider whether there will be shared facilities such as a bathroom and kitchen. If so, the property may be a HMO if let to multiple people separately.

The next consideration is the size of the property, as there are two types of HMOs, determined by the number of parties it is let to, and each is treated differently. Small HMOs are properties which accommodate up to six unrelated individuals or families. A small HMO is a use within Class C4 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (the “UCO”):

“Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”.”

However, it is also possible that a use by six related or unrelated individuals if they were living together as a single household would not be considered a HMO; Class C3(c) of the UCO provides:

“(c) not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4).”

A large HMO is a property accommodating more than six unrelated individuals or families, this is a sui generis use, and does not fall within a specific use class.

HMO licensing is regulated under the Housing Act 2004. It is separate from the planning regime. In simple terms, there is mandatory licensing for large HMOs of five or more separate families or individuals not living as a single household but sharing facilities. A local authority can also adopt “additional” HMO licensing for three people or more not living together as a single household but sharing facilities. Checks should be made with each relevant local authority to confirm licensing requirements.

In planning terms, generally, if the property has been occupied by one family previously or has planning permission as a single dwelling (a C3(a) use), then a change to a use within Class C3(c) will not be a material change of use, as this is a change within a use class, and such a change does not require planning permission. Where is property in C3(a) use is changed to a small HMO in C4 use (and vice versa) then this will be permitted development, and will not require planning permission as this change falls within Class L of the Town and Country Planning (General Permitted Development) (England) Order 2015. The waters are muddied slightly by Article 4 of the UCO, which allows a local planning authority to make a direction that these permitted development rights do not apply in their area. This should be checked, as if such a direction applies, planning permission would be needed to change a home from C3 use to a small HMO C4 use.

Any change from a single dwelling to a large HMO will, however, require planning permission.

While there are two options for hosts – either to provide their room or property for free, of for a monthly £350 flat payment – hosting refugees for free would not appear to affect the planning position, as the UCO refers only to “residents” rather than tenants, or similar terms.

A further issue may arise in relation to the term of letting if the property is in London. The scheme FAQs state that “We are asking people in the UK to offer accommodation for at least 6 months”. This implies some flexibility in term length under the scheme, perhaps further down the line, which may be appealing where a host owns a property which may currently have shorter anticipated periods where it will be empty, perhaps between works being undertaken, or where the owners are away, which could be offered under the scheme. Should short tenancies be allowed, hosts of London homes should however note that in order not to fall foul of short term letting provisions², the tenancy should be no shorter than 90 days, or alternatively the host must: (1) pay the council tax for the property; (2) ensure each tenancy is no longer than 90 days; and (3) ensure that the total number of let days over a calendar year is no more than 90 days.