Two Liverpool HMO lawful use appeals have been won on the same day, giving two quite different lessons about the evidence needed to establish planning lawfulness.
Inspector John Whalley allowed appeals concerning Lidderdale Road and Penny Lane on 29th September 2026. At Lidderdale Road, the key issue was whether an already lawful small HMO use had somehow been lost after Liverpool’s Article 4 Direction took effect. At Penny Lane, the question was whether a large HMO had continued for the full ten-year period despite occupancy moving between nine and eight people.
The common thread is not that missing paperwork can be ignored. It is that the planning question has to be identified correctly before the evidence is weighed. Licensing records, tenancy agreements and council-tax information can all matter, but none has a fixed status that automatically proves, or disproves, planning lawfulness.
Lidderdale Road: a lawful C4 use did not need to be proved all over again
The Lidderdale Road, Liverpool HMO appeal concerned an application for an existing lawful use as a small HMO for three to six residents, within Use Class C4.
Liverpool’s case was that the owner needed to demonstrate an uninterrupted HMO use through the relevant period, including after the local Article 4 Direction came into force on 19th July 2018. The Council pointed to missing HMO licences, piecemeal tenancy agreements, gaps in student council-tax exemptions and incomplete occupier information.
Inspector Whalley took a different view of the legal starting point. If the property was already in lawful C4 HMO use before the Article 4 restriction took effect, the subsequent Direction did not turn that lawful use into an unlawful one. Nor did periods when the evidence of occupation was thinner automatically extinguish the established planning use.
“The failure or an inability to provide substantial information to demonstrate the ongoing lawful HMO use does not remove that lawfulness.”
Inspector John Whalley
He identified three ways in which an existing lawful-use right could be lost: abandonment, formation of a new planning unit or a further change of use that superseded it. Liverpool had produced no evidence showing that any of those things had happened.
The distinction matters. Where an applicant is trying to show that an unlawful use has acquired immunity through the passage of time, the evidence must prove the relevant use for the required period. Here, however, the Inspector found that the evidence pointed to a lawful small-HMO position having already been established before the Article 4 controls bit. Once that starting point was accepted, the later gaps in administrative records did not themselves reverse the planning status.
The appeal was allowed and a certificate issued for the C4 HMO use. Planning Geek has hosted a local copy of the Lidderdale Road appeal decision.
Penny Lane: nine occupants dropping to eight was not a new use
The Penny Lane case raised a different problem. The application sought a certificate for an eight-person large HMO in sui generis use. Liverpool accepted that tenancy agreements covered the relevant period, but argued that the claimed eight-person use had not continued for ten years because the property had nine occupants for part of that time.
That argument depended on the change from nine occupants to eight being material in planning terms. Inspector Whalley was not persuaded.
“The effect on the house and its immediate surroundings would likely have been minimal, scarcely discernible.”
Inspector John Whalley
Both levels of occupation remained within a large-HMO sui generis use. The Inspector found that the reduction by one person had not produced a significant change in the character or impact of the use, so it did not restart the ten-year clock.
Liverpool also relied on gaps elsewhere in the records. Copies of Liverpool HMO licences did not cover the whole period, council-tax records were sporadic, deposit information was incomplete and no statutory declaration had been supplied confirming ten years of occupation by eight people.
Those omissions did not defeat the appeal because the complete sequence of assured shorthold tenancy agreements demonstrated continuous large-HMO occupation by at least eight people throughout the required period. Crucially, the Council had not produced counter-evidence showing that the occupation described in the tenancy records had not occurred.
The Inspector therefore concluded that the planning evidence was sufficient, even though the wider licensing and administrative file was imperfect. The appeal was allowed and a certificate issued for use as a large Liverpool HMO for eight people. A local copy of the Penny Lane appeal decision is available on Planning Geek.
What the Liverpool HMO lawful use appeals do not prove
Read superficially, the two decisions might look like a relaxation of the evidence needed for a lawful HMO. They are not.
Planning Geek has recently reported the opposite outcome in another Liverpool HMO lawful-use appeal, where licences, licence agreements and a statutory declaration still failed to establish the actual occupation history. In Surbiton, an HMO licence dating from 2009 also failed to bridge major evidential gaps.
The difference is what each document proves in the particular planning case. A licence may show that a property was licensed for HMO occupation and the permitted capacity under housing legislation. It does not automatically prove that the planning use existed continuously. A tenancy agreement may be weak if it merely shows a right to occupy, but a complete run of agreements can become persuasive where they collectively evidence the actual use and there is no contradictory material.
Likewise, a gap in occupation does not necessarily mean a lawful use has been abandoned. Lidderdale Road shows why the starting planning status matters, particularly where an Article 4 Direction later removes permitted development rights.
The practical lesson is to prove the planning fact, not collect documents by category
For owners and advisers preparing a certificate of lawfulness for an existing use, these appeals are a useful warning against treating the evidence exercise as a checklist.
First identify the exact planning proposition that needs to be proved. Is the case about showing that a use was already lawful before an Article 4 Direction? Is it about acquiring immunity through ten years of continuous use? Or is the dispute really about whether a change in intensity, such as one additional occupier, was material enough to create a new use?
Only then does it make sense to test the available evidence against that question. Tenancy agreements, licences, council-tax records, utility information, sworn evidence and other contemporaneous records can reinforce one another, but they are not interchangeable.
Both appeals were decided by Inspector John Whalley following site visits on 17th September 2026. The references are APP/Z4310/X/25/3375926 for Lidderdale Road and APP/Z4310/X/25/3375913 for Penny Lane. The Planning Inspectorate case pages remain available for Lidderdale Road and Penny Lane.
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