A Brent HMO enforcement notice has been quashed after an Inspector found that the council had alleged the wrong planning use. Rooms with small kitchenettes did not, on the evidence in this case, amount to the self-contained flats described in the notice.
Inspector Felicity Thompson found that the property on Cairnfield Avenue, north-west London, was being used as an HMO when Brent issued its notice. Rewriting the allegation at appeal would have caused injustice, so the whole notice fell.
The decision issued on 2nd October 2026, appeal APP/T5150/C/24/3356366, is a useful reminder that enforcement depends on identifying the actual breach. It does not establish a general rule that bedrooms with cooking facilities can never become flats.
What the Brent HMO enforcement notice alleged
Brent issued the notice on 25th October 2024. It alleged an unauthorised material change of use of the front part of the premises to a mixed use comprising self-contained flats and HMO/shared accommodation. It separately alleged a storage use at the rear.
The Brent HMO enforcement notice went well beyond stopping occupation. Its requirements included removing internal partitions and associated items, retaining only one kitchen and two bathrooms or shower rooms and toilets, and restoring the previous internal layout.
The notice also required the rear storage use to cease, with removal of the dividing garden fence and associated materials, equipment, waste and items. The compliance period was six months.
However, the front-use allegation was decisive. An HMO and a mixed use incorporating separate flats are different factual propositions. The council could not simply treat them as interchangeable descriptions of the same breach.
How the Brent HMO enforcement appeal reached ground (b)
The appellant, Mr Umer Ashraf of Ash Brothers Ltd, had appealed on grounds (a), (c), (f) and (g). Ground (b) had not formally been pleaded.
Nevertheless, the appellant argued that the property was a Class C4 HMO, rather than the mixed use alleged. The Inspector treated that argument as a hidden ground (b): the matters stated in the notice had not occurred as a matter of fact.
After her site visit and review of the submissions, she put questions about the allegation to both main parties. Brent had an opportunity to respond, allowing her to consider the appeal as though ground (b) had been pleaded.
The appellant carried the burden of proof, assessed on the balance of probabilities. Our guide to enforcement appeal grounds explains why choosing the right ground and supporting it with evidence matters.
Kitchenettes did not settle whether these were flats
Council photographs from October 2024 showed room three with sleeping and living accommodation, an en-suite shower and toilet, and a modest kitchenette. There were kitchen-style cupboards, a sink, a small worktop, a two-ring hob, microwave, toaster and fridge freezer.
Each room had a lockable door. The appellant’s photographs and submissions led the Inspector to conclude that the other ground and first-floor rooms probably had similar facilities. The second-floor room had no kitchenette and used an adjacent kitchen described as communal in the HMO licence application.
The Inspector distinguished the Housing Act 2004 standard HMO test from the planning test for a dwellinghouse. Under the housing legislation, sharing or lacking basic amenities is relevant, alongside the other statutory criteria. Those amenities include toilets, washing facilities and cooking facilities.
For planning purposes, she applied Gravesham Borough Council v Secretary of State for the Environment and O’Brien [1983] JPL 306. The question is whether accommodation provides the facilities required for normal day-to-day private domestic existence.
As Thompson explained, that is “not the bare minimum that it is actually possible to survive on”. Having enough equipment to heat a meal is not necessarily the same as having a separate dwelling.
Here, the rooms were very modest and lacked amenities normally found in dwellings, such as space to sit, eat and relax. Food-preparation space was limited, and there were no conventional ovens. The Inspector considered the range of food that could be prepared extremely restricted.
The Brent HMO enforcement appeal therefore turned on the accommodation as a whole, including its suitability and actual use. It was not decided by counting sinks, hobs or door locks.
The shared kitchens remained important
There were communal kitchens on the first and second floors. The first-floor kitchen was reasonably sized, with cooking and laundry facilities; the smaller second-floor kitchen offered similar facilities.
Brent had seen a sign describing the first-floor kitchen as a staff kitchen, with tenant access for laundry only. The appellant said this was temporary while repairs and appliance replacements took place, and that tenants were directed upstairs.
The Inspector accepted there had been an uncertain period of restricted first-floor access. However, the evidence indicated that occupants still had access to the second-floor kitchen.
One resident told council officers that they prepared meals in their room and did not use other kitchen facilities. That did not determine the planning use: choosing not to use shared facilities was different from having no option to use them.
Thompson concluded that occupants had the opportunity to share basic amenities. On the evidence and balance of probabilities, the use at the notice date was an HMO, and the alleged mixed-use change had not occurred.
At her visit on 30th June 2026, none of the rooms contained cooking facilities and the shared kitchens were evidently in use. Crucially, she still examined the earlier position. Later removal of equipment could not, by itself, answer whether the alleged breach had already occurred.
Council tax and studio addresses were not decisive
The Valuation Office received a request on 6th February 2021 to create six addresses described as Studio Flats 1 to 5 and Loft Flat 6. There was also a separate council tax rating for one studio.
In the Brent HMO enforcement appeal, these were relevant evidence, but they did not establish the planning classification. Thompson said “these matters are not determinative”, explaining that rooms with their own kitchenette or bathroom facilities might receive separate bands while still sharing facilities.
The tenancy agreement’s lack of reference to kitchen access and the rent charged were also not particularly instructive on their own. For owners, that is a practical warning against treating administrative labels as a substitute for evidence of use.
We would examine plans, photographs, occupancy and access arrangements together. Our lawful HMO guidance explains how to assemble evidence of a property’s planning status.
Why the Article 4 date mattered
Brent’s Article 4 Direction removing Class L rights for changes from C3 dwellinghouses to Class C4 HMOs came into force on 1st November 2022. The appellant’s case was that the C4 use had already begun before then.
The Inspector set out that permitted development background. However, the appeal succeeded because the mixed use alleged in the notice had not occurred. She did not go on to determine ground (c) or the deemed planning application.
We should therefore distinguish the appellant’s claimed pre-Direction lawfulness from the finding that defeated this notice. Quashing it was not a grant of planning permission or a lawful development certificate. Our Article 4 guidance covers the wider restrictions.
The separate London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 2051 (Admin) judgment provides related context on C4 HMOs and dwellinghouses. It concerned householder permitted development rights, rather than this notice or these rooms.
Why the Inspector could not rewrite the notice
Thompson considered correcting the Brent HMO enforcement notice to allege an HMO instead. She concluded that, with the use correctly identified, the council’s reasons for enforcement and the parties’ cases might have been advanced differently.
The statutory correction power under section 176 of the Town and Country Planning Act 1990 is subject to avoiding injustice. Here, changing the allegation would cross that boundary.
The whole notice was quashed on ground (b). The remaining grounds and deemed application did not fall to be considered. That outcome does not amount to a separate finding that the rear storage use was lawful.
For councils, the lesson is to investigate and describe the alleged use precisely. For owners, the Brent HMO enforcement decision shows why evidence must address the allegation actually made, rather than simply argue that a property is an HMO.
I would not use this decision as a shortcut for another property with kitchenettes. Different room sizes, facilities, shared access or occupation could produce a different result. If a notice arrives, our enforcement notice guidance is a useful starting point, alongside advice on the particular facts and appeal deadline.
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