Wigan HMO appeal: pre-Article 4 LDC does not save scheme

A Wigan HMO appeal has been dismissed in a decision which turns on two very different planning points: what a proposed-use lawful development certificate actually protects, and whether one bedroom could live comfortably beside a communal kitchen, dining and lounge area.

The five-bedroom, five-person Class C4 scheme at Kimberley Street cleared most of the objections that commonly sink HMO proposals. Wigan accepted the concentration tests were met, the house would not create harmful sandwiching or three adjacent HMOs, and the Inspector found no unacceptable effect from parking, the rear yard or the wider impact on neighbours.

But the appeal still failed. Bedroom 2 shared a thin wall with the main communal room, close to the position shown for the bed, and Inspector N Duff was not satisfied that management or unspecified acoustic measures would make that relationship acceptable.

The LDC came first, but the legal position changed

The chronology is important. Wigan granted proposed-use certificate A/24/098218/LUCP on 17th February 2025 for a change from a C3 dwelling to a five-person, five-bedroom C4 HMO.

At that point the C3-to-C4 change could be made under Class L permitted development rights. The certificate therefore confirmed the lawfulness of the proposal on the basis of the legal and factual position then applying.

Wigan later made a borough-wide Article 4 Direction on 15th July 2025, confirmed it on 21st August, and brought it into force on 31st August 2025. From that date the Class L route was removed across the borough and planning permission was required for a C3-to-C4 change.

The crucial point is that a proposed-use certificate is not a permanent planning permission for a use which has never started. Section 192(4) of the Town and Country Planning Act 1990 qualifies the conclusive presumption created by a proposed-use certificate where, before the use is instituted, there is a material change in a matter relevant to deciding lawfulness.

Government guidance on lawful development certificates gives an Article 4 Direction removing the permitted development right relied upon by the certificate as a specific example of that kind of material change.

So the certificate did not expire, and the appeal decision does not say it was revoked or invalid. Rather, its statutory effect did not give permanent protection to an unimplemented C4 use after the relevant planning law changed. Planning Geek explains that distinction in more detail in our guide to certificates of lawfulness for proposed use or development and our page on Article 4 and material changes before implementation.

The appeal therefore proceeded as a planning merits case to regularise the HMO use.

Most of Wigan’s HMO objections fell away

That is where the decision takes its second turn. Wigan’s HMO Supplementary Planning Document uses three familiar controls to prevent damaging concentrations: a percentage threshold, protection against sandwiching ordinary homes between HMOs, and a restriction on creating three adjacent HMO properties.

The council was satisfied that the Kimberley Street proposal met all three tests.

Inspector Duff agreed there would be greater intensity than the former two-bedroom dwelling, but treated the proposed five-person HMO as modest in scale. With the concentration safeguards met, she found no cumulative harmful effect on neighbours or on the wider character of the area.

The rear yard was modest but functional. Its use by five occupiers was not considered likely to cause significant harm, particularly alongside the management arrangements proposed.

Parking did not sink the scheme either. There was no off-street parking, but the Inspector found any increase in demand would be modest. A parking snapshot showed spaces on both sides of the street, the appellant’s survey recorded at least three spaces available, cycle storage was proposed and the property had reasonable access to other transport.

The council’s own officer had not identified highway capacity or safety harm. The Inspector therefore found no significant adverse effect on neighbouring living conditions through parking competition.

One bedroom beside the communal room proved decisive

The problem was inside the house.

Wigan’s SPD says HMO layouts should pay particular attention to the relationship between bedrooms and communal living space, so residents have adequate privacy and are not exposed to unacceptable noise.

Bedroom 2 was on the ground floor. The wall close to the position of the bed adjoined the communal kitchen, dining and lounge area, and the Inspector described the dividing wall as thin.

Although the bedroom met Wigan’s minimum space standard for single occupancy, its resident would rely on the shared room for cooking, dining and living. That meant the communal area was likely to be used frequently and by different occupiers at different times.

The appellant pointed to management controls, but the Inspector said: I cannot be certain as to the effectiveness of a management plan for indoor communal facilities.

Acoustic insulation was also suggested. The difficulty was evidence, not simply whether insulation could theoretically be installed. Inspector Duff recorded there was no substantive evidence demonstrating what mitigation was needed or how effective it would be.

That left her unable to conclude that Bedroom 2 would have acceptable living conditions from noise. Other internal concerns, including odour, privacy, outlook and the relationship of Bedroom 4 to shared space, were not found to justify refusal.

The August 2026 NPPF did not rescue the appeal

The decision was made against the National Planning Policy Framework published on 17th August 2026. The parties were invited to comment on the new Framework before the appeal was determined.

The Inspector applied its presumption in favour of sustainable development, including policies S3 and S4, but also the national decision-making policy on healthy living conditions and pollution in policy P3.

There were benefits. The HMO would add housing choice, the location was sustainable, cycle storage was available and Wigan had raised no concern about the external appearance of the works. Those points counted in favour of the scheme.

But the noise risk to the future occupier of Bedroom 2 meant the proposal conflicted with the Framework’s protection of health and quality of life. The Inspector concluded that the adverse effect substantially outweighed the benefits and dismissed Appeal Ref 6008026 on 25th September 2026.

Why this Wigan HMO appeal matters

There are two practical lessons, and they should not be muddled together.

First, a proposed-use LDC records lawfulness against the circumstances relevant to that proposed use. Section 192(4) expressly deals with a material change occurring before implementation. Anyone relying on a certificate where an Article 4 Direction is approaching should therefore pay close attention to whether the lawful use has actually been instituted before the legal position changes.

Second, passing an authority’s HMO concentration, parking and external amenity tests does not guarantee permission. Internal relationships can be decisive, especially where a bedroom immediately adjoins heavily used communal space and the appeal evidence does not demonstrate how noise will be controlled.

Read the locally hosted appeal decision or see Appeal Ref 6008026 on the Planning Inspectorate service. Wigan’s official Article 4 page confirms the borough-wide Direction took effect on 31st August 2025. Planning Geek has also hosted the sealed Wigan HMO Article 4 Direction locally.