An HMO licence issued in 2009 was not enough to prove that a Surbiton property had been in continuous lawful HMO use for ten years, after an Inspector found major gaps in the occupation evidence.
The appeal concerned Berrylands Road, where the appellant said the HMO use pre-dated the relevant date of 17th August 2013. Inspector A U Ghafoor dismissed the appeal on 25th September 2026, but was equally clear that the decision does not establish that the use is unlawful. It means the evidence presented so far did not prove the claimed lawfulness.
A 2009 HMO licence did not prove when the use began
The lawful development certificate application was made under section 191 of the Town and Country Planning Act 1990. The submitted plans showed six bedsits with shared kitchen and bathroom facilities, while the appellant relied on internal photographs, floor plans and a council HMO licence dating from 2009.
The appellant’s case was that the internal layout had remained unchanged since the first HMO licence was granted. That was not enough to establish the planning history.
“There is insufficient evidence to substantiate those assertions.”
Inspector A U Ghafoor
The photographs showed the current arrangement, but they did not establish when the bedsits and shared accommodation were created. The Inspector also had no evidence about the nature or extent of any conversion works. Without that supporting material, she could not conclude that the HMO use had begun on or before the relevant date.
For an existing-use certificate, the burden rests on the applicant. The Inspector repeated the familiar test that the evidence must be “sufficiently precise and unambiguous” to justify a certificate on the balance of probability.
Occupation history was the missing evidence
The bigger problem was not the existence of the licence but the lack of evidence showing how the property was actually occupied throughout the ten-year period.
There was no detailed account of who occupied the bedsits on or before 17th August 2013, no evidence explaining how the shared facilities were used and no documentary trail showing continuous HMO occupation through the full period relied upon.
The Inspector even identified utility bills as the sort of evidence that might have helped by showing patterns of consumption and the scale of residential use. None had been supplied.
Local taxation records produced by the Council complicated the picture further. They showed Berrylands Road rated as three separate units, two identified as Flats 6 and 7. The appellant said those flats were separate from the HMO and had been created after a launderette closed, but the Inspector found the layout and use of the premises remained unclear.
That contradictory material weakened the assertion that the same HMO use had continued, without significant interruption, for the whole ten-year period.
HMO licensing and planning law answer different questions
The decision is another practical example of why an HMO licence cannot be treated as a substitute for evidence of planning lawfulness. Licensing can be useful evidence that a property was licensed for HMO occupation under the housing regime at a particular time, but an LDC requires proof of the planning use itself and, where immunity is relied upon, its continuity over the relevant period.
That point has surfaced in other recent appeals. Planning Geek recently reported a Liverpool HMO lawful-use appeal where licences, licence agreements and a statutory declaration still left gaps in the occupation history.
Our wider guide to proving a lawful HMO looks at the evidence that can help establish planning status, while the certificate of lawfulness guide explains the wider immunity and evidence framework.
Dismissal is not a declaration that the HMO is unlawful
This is the important qualification. The Inspector did not decide that the HMO use was definitively unlawful.
She referred directly to national Planning Practice Guidance, which says that refusal of an LDC is “not necessarily conclusive that something is not lawful”. In this case, she said that was “certainly the circumstance here”: insufficient evidence had been presented to date.
The Inspector also referred to the Council’s “muddled approach”, but that did not remove the appellant’s burden to prove the decisive facts. The appeal therefore failed because the evidence did not clearly establish commencement by the relevant date and continuous HMO occupation throughout the ten-year period.
For owners facing the same problem, the distinction matters. A failed LDC application can leave open the possibility of a later application supported by a stronger and more coherent evidence trail. Planning Geek’s guide to a lawful development certificate appeal explains the appeal route, while our planning enforcement section covers the wider enforcement framework.
Appeal reference: APP/Z5630/X/24/3351923. Kingston application reference: 23/02267/CPU. Planning Inspectorate case page.
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