An owner who said a Liverpool house had operated as an HMO for years has failed to obtain a lawful development certificate despite producing HMO licences, licence agreements and a statutory declaration.
The Liverpool HMO lawful use concerned 9 Halkyn Avenue, where the appellant argued that use by up to six residents had begun in 2008 and continued lawfully ever since. Inspector M Savage was not persuaded that the evidence proved the planning case on the balance of probability.
Years of paperwork, but gaps in actual occupation
The application sought a certificate for an existing Class C4 HMO. The appellant’s case was that the property had been occupied as an HMO from 1st December 2008, well before Liverpool’s Article 4 Direction removed the permitted development route from C3 to C4 in this area on 17th June 2021.
There was paperwork pointing towards HMO activity. Licence agreements were supplied for periods between 2018 and 2025, and HMO licences had also been issued. A statutory declaration described the property as having been used by up to six people.
The difficulty was what those documents actually proved.
The Inspector noted that a licence agreement can show somebody was entitled to occupy a room without proving that they actually did so throughout the relevant period. An HMO licence similarly establishes the licensing position and permitted capacity, but does not by itself prove the number of people who were living at the property for planning purposes.
Other records added uncertainty. Evidence relating to 2017 and 2018 appeared to show periods when only one person was recorded as occupying the property. There was also an earlier lawful development certificate application concerning a seven-bedroom HMO, with a different claimed commencement date.
The statutory declaration did not close those gaps. The Inspector found it unclear how much of the occupation history had been personally witnessed by the declarant and what was based on information from others.
The 2010 change did not rescue an earlier unlawful use
Class C4 did not exist when the appellant said the HMO use began in 2008. The Inspector therefore had to consider what the planning use actually was before the Use Classes Order changed in 2010.
The evidence did not establish whether the occupiers then lived together in a way that remained within Class C3, or whether a material change of use had already taken place. That mattered because the later introduction of a permitted development right between C3 and C4 could not retrospectively make an earlier unlawful change lawful.
For the more recent immunity case, the certificate application was made on 29th April 2025. The appellant therefore needed sufficiently clear evidence of the relevant use beginning by 29th April 2015 and continuing through the required period. The Inspector found the evidential picture too uncertain.
Why the Liverpool HMO lawful use claim failed
The Inspector did criticise aspects of Liverpool City Council’s reasoning, including language suggesting the evidence had to be “irrefutable”. That is not the civil standard applied to lawful development certificates.
But that did not change the outcome. The burden remained on the applicant to show, on the balance of probability, that the claimed use was lawful. The appeal was dismissed on 21st September 2026.
The decision is a useful reminder that licensing records and occupancy paperwork can be valuable evidence, but they still need to prove the planning facts that matter. Planning Geek’s guide to proving a lawful HMO looks at the wider evidence picture.
Appeal reference: APP/Z4310/X/25/3375109. Planning Inspectorate case page.
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