C5 Use Class and Article 4: Which English Councils Moved First - and What It Means

In short: The introduction of the C5 Use Class was widely presented as giving short-term let operators a defined and permitted route into short-let use in England. In areas where councils have moved to layer Article 4 Directions on top, that presentation is now demonstrably wrong. Operators in affected areas need to look again.

The C5 Use Class - the new dedicated use class for short-term lets in England - is now in force. On paper, it does two useful things: it defines short-term let as a distinct use class (rather than leaving it to the "material change of use" test), and it makes a change of use from C3 (dwellinghouse) to C5 a permitted development, meaning no planning application is required.

That is the paper position. The practical position, in the areas where councils have moved quickly, is very different.

The Article 4 mechanism

An Article 4 Direction is a tool that allows a local planning authority to remove a permitted development right in a defined area. Where an Article 4 Direction is in force, the change of use that would otherwise have been permitted requires a planning application and can be refused.

The mechanism is not new. Article 4 has been used against HMOs (C4) for years and against several other permitted changes. What is new is the appetite among some councils to use it against the incoming C5 permission.

Which councils moved first

The pattern that has emerged over the summer is roughly this:

• Coastal and honeypot authorities in Cornwall, north Norfolk, parts of the Lake District, and the Yorkshire coast have either designated Article 4 areas or opened consultations to do so, in most cases citing housing supply and community sustainability.
• Historic city authorities - most notably York, Bath, and parts of central Cambridge - have moved similarly, framing the case around neighbourhood amenity and the character of Article 4-designated conservation areas.
• Some London boroughs with high concentrations of short-let flatted stock have opened consultations, with Westminster and Kensington and Chelsea the two most publicly progressed at the time of writing.

Each authority's process, and the geography of each Direction, is different. Operators in any of the areas above should check the specific status of their property's location rather than relying on the summary above.

What this means for operators

The introduction of C5 was widely, and reasonably, taken to be helpful news for existing and prospective short-term let operators in England. In areas untouched by Article 4, it remains helpful news.

In areas where Article 4 has been designated, the practical position is materially harder than it was before C5 was introduced. Before the introduction, an operator relied on the "matter of fact and degree" materiality argument, which - though far from a guarantee - offered a route to Certificates of Lawfulness on the "no material change" basis in many cases. With C5 defined and Article 4 in place, that argument is significantly weakened: the change of use is now a defined change into a defined class, and the Article 4 Direction requires an application for it.

The operator's position is not hopeless in those circumstances. It is, however, meaningfully worse than the pre-C5 position for existing uses that had not sought protection.

What operators should do

1. Check the Article 4 status of the property's location with the local planning authority. Do not rely on summaries. 2. Where a use pre-dates C5 or Article 4, take advice on whether a Certificate of Lawfulness can be secured to lock in the position before the Direction begins to bite. 3. Where the use is proposed rather than existing, take advice on whether an application under C5 in a non-Article 4 area may be feasible, or whether the proposal requires a planning application in an Article 4 area. 4. Where a property is in an area that has opened a consultation but not yet designated, act now. The gap between consultation and designation is often short.

The pattern in Wales, which introduced its equivalent Use Class earlier, is instructive: several Welsh authorities designated Article 4 areas within months of the new class coming into force. English operators in areas showing early signs of similar activity should assume the same trajectory is likely.

Book a free consultation or start a Certificate of Lawfulness application.

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Ross Armstrong Head of Professional Services, STL Solutions