A Liverpool HMO lawful-use appeal has failed despite HMO licences dating back to 2013 and a substantial bundle of tenancy, financial and witness evidence for the seven-bedroom, seven-person sui generis use claimed.
The appeal concerned 13 Warbreck Road, Liverpool. The Inspector agreed that Liverpool City Council had used the wrong expression when it said the evidence did not “irrefutably” prove the claimed use.
The correct test for an LDC is the balance of probabilities. But correcting the council’s test did not rescue the appeal. The Inspector independently found that the evidence still did not prove the precise seven-person sui generis HMO use throughout the necessary ten-year period.
The decision is a particularly useful companion to Sentinel Estates. That High Court judgment explains why the former four-year rule did not apply to HMO use. Liverpool shows the separate practical problem of proving the use as a matter of fact.
The Liverpool HMO licensing history went back to 2013
Liverpool refused application 25LE/0902 for a certificate under section 191 of the Town and Country Planning Act 1990. The claimed use was a seven-bedroom HMO occupied by seven people, a sui generis HMO rather than a Class C4 HMO.
The appellant produced a large evidence bundle. It included HMO licences, tenancy agreements, Council Tax information, utility material, invoices, advertisements, rent records, photographs, witness statements and a statutory declaration from the accountant.
The licensing history was substantial. The Inspector recorded a licence dated 1st August 2013 stating that the property was suitable for no more than seven people, followed by licences dated 25th February 2015, 25th April 2018, 14th November 2018 and 28th March 2024.
On the face of it, that looks powerful. The appeal demonstrates why the evidential question cannot stop there.
An HMO licence does not prove actual occupation by seven people
An HMO licence can be important evidence. It can support the layout, the authority’s knowledge of the property and the number of people for whom the premises were considered suitable.
But a licence authorising or recognising accommodation for seven people does not prove that seven people actually occupied the property throughout the relevant period.
That distinction mattered because the certificate sought was not simply for some form of HMO use. It was for a specific seven-person sui generis HMO use.
The Council Tax description as “Bedsits” supported multiple occupation, but did not establish the number of occupiers. Utility bills and invoices showed activity at the property, but many were addressed to the company or other non-occupiers and did not demonstrate seven simultaneous residents.
Advertising records were also consistent with rooms being offered and tenant turnover, but they did not answer the central question of how many people were actually occupying the building at particular times.
Planning Geek already warns on our proving lawful HMO use page that licensing and planning control are separate, and that a licence allowing a particular number of occupiers does not prove that number actually lived there throughout the claimed period. This appeal gives that warning a particularly clear factual example.
The correct test was balance of probabilities, not “irrefutable” proof
Liverpool’s refusal referred to the evidence not “irrefutably” proving continuous occupation.
The Inspector made clear that this was not the correct legal test. An applicant for a lawful development certificate has to prove the claimed facts on the balance of probabilities. The evidence does not have to amount to proof beyond reasonable doubt, absolute certainty or something incapable of contradiction.
The Inspector also noted the established principle that sufficiently precise and unambiguous evidence from an applicant does not always need independent corroboration where there is no evidence to contradict it.
But an appeal against refusal of an LDC is not won merely by identifying an error in the council’s wording. The Inspector had to decide whether the refusal itself was well founded.
Applying the correct balance-of-probabilities standard, the Inspector still found the evidence too imprecise and contradictory to establish the claimed seven-person use throughout the whole period.
Planning use is not identical to continuous physical occupation
There is an important qualification here. A house does not stop being an HMO every time a tenant goes on holiday, one room is empty for a few days or one tenancy ends shortly before another begins.
The Inspector recognised that tenant turnover is normal and that short gaps do not automatically interrupt an established planning use.
The problem arises where the evidence shows, or leaves a real possibility of, longer or more substantial periods at a materially different level of occupation. For a claimed seven-person sui generis HMO, occupation by four or five people for a meaningful period may raise a different planning question from a short vacancy in one room.
That is why a chronology matters more than a pile of disconnected documents.
The evidence contained gaps and contradictions
The Inspector worked through the evidence in detail.
There were tenancy agreements for individual rooms and witness evidence from former occupiers. However, the records did not provide a complete ten-year picture and some room allocations and dates were unclear.
Rent and arrears records included periods with only six or fewer names. One record stated that an occupier had moved out while housing benefit was still being paid. A communication dated 14th January 2020 said that the same person had been away from the property for around six months and was staying with a friend.
The Inspector distinguished a continuing right to occupy, or the continued payment of rent, from evidence of actual occupation. A six-month absence was capable of being materially different from an ordinary holiday or short changeover.
A valuation report from 24th November 2022 listed seven rooms and tenants, but the Inspector identified inconsistencies between some of those details and other tenancy evidence.
The accountant’s statutory declaration, dated 26th March 2026, said each of the seven rooms had been continuously rented since August 2013 subject only to normal short void periods. But those void periods were not defined and the broad statement sat uneasily with parts of the underlying records.
The photographs and street-view material added little to the question of how many people actually occupied the house at relevant times.
Taken together, the evidence did not satisfy the Inspector on the balance of probabilities.
Sentinel identifies the period; Liverpool shows how to prove it
In Sentinel Estates Limited v Secretary of State for Housing, Communities and Local Government [2026] EWHC 1122 (Admin), the High Court confirmed that the former four-year immunity rule for use as a single dwellinghouse did not extend to an HMO. The ten-year period applied to the HMO use considered there.
That answers a legal time-limit question. It does not remove the separate evidential burden.
Liverpool illustrates the next question: can the claimant prove, on the balance of probabilities, that the precise planning use claimed existed for the whole period needed?
For existing-use LDCs, Planning Geek’s guide to lawful development certificate appeals explains the wider evidential approach.
What should evidence for a lawful HMO show?
The practical lesson is to build a year-by-year and, where necessary, month-by-month chronology rather than relying on the age of the oldest document.
- Identify the precise HMO use being claimed, including the relevant occupancy level
- Match tenancy and rent records to named occupiers and dates
- Use licensing records as supporting evidence, not as a substitute for actual-use evidence
- Explain voids, tenant changes, long absences and conflicting dates
- Separate a temporary empty room from a potentially material change in the character of the use
- Test witness statements against the contemporary records rather than assuming they cure documentary gaps
A long licensing history can be valuable. What it cannot do by itself is prove every factual element of the planning use for the whole immunity period.
The Planning Geek takeaway
The Liverpool decision contains two lessons that should be kept together.
The applicant did not have to prove the case “irrefutably”. The correct standard was the balance of probabilities.
But using the right legal standard did not lower the need for coherent evidence. The Inspector was not satisfied that this particular seven-person sui generis HMO use had been established throughout the ten-year period.
For HMO owners, the safest evidence bundle is not necessarily the biggest one. It is the one that tells a consistent chronological story about the exact use being claimed.
Sources and documents
- Planning Inspectorate appeal APP/Z4310/X/25/3376770 full decision, 13 Warbreck Road, Liverpool, issued 14th September 2026
- Town and Country Planning Act 1990, section 191
- Sentinel Estates Limited v Secretary of State for Housing, Communities and Local Government [2026] EWHC 1122 (Admin)
Created: 15th September 2026
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