Law of Place - Cardiff University · Web viewIn 2006 the Government’s ‘best estimate’ was that there are 700,000 HMOs in England, with 300,000 that are sufficiently large

This is a first draft of a paper that is still in its very early days. Please do not cite as these are extremely tentative, initial thoughts.

The Law and Geography of Houses in Multiple Occupation:Co-existence or Exclusion?1

Dr. Antonia Layard, Cardiff Law School

While gated communities now flourish in South America, South Africa, India and China, they remain in the popular imagination inescapably associated with the United States.2 Here the stereotype of luxury developments has translated into over 300,000 ‘common interest communities’ housing 60 million people.3 Yet gated developments exist in the United Kingdom as well, as Mrs. Thatcher found when she bought a house in on an enclosed site in Dulwich in 1985.4 Increasingly both modern luxury developments and public housing are built with segregation in mind with ‘walls, fences and the ubiquitous CCTV’.5 Yet while these gated communities literally set the boundaries in stone, there is now a new form of exclusion. A change in the rules affecting the location of houses in multiple occupation (HMOs) will draw lines determining who can live where, monitored by planning officials and invisible to the naked eye.

This is the result of a forthcoming change in the 1987 Use Classes Order to create a separate use class for houses in multiple occupation (HMO). From April 2010 this will require property owners to apply for planning permission to change the use of a dwellinghouse occupied by a single person, couple or family into one occupied by ‘three residents living together as a single household’.6 When determining an application for planning permission local planning authorities will be able to justify refusal if in their development plans they have designated any given spatially defined area as already overly concentrated with HMOs.

This rather technical intervention will have fundamental implications for both individuals and communities. It uses a legal provision of ‘command’ to separate, first conceptually and then spatially, 1 If you have any comments, criticisms or suggestions for further reading I would be delighted to receive them at [email protected]. Thank you. 2 Anna Minton, Ground Control: Fear and happiness in the twenty-first century city (London, Penguin: 2009) 613 Community Associations Institute, Industry data available at http://www.caionline.org/info/research/Pages/default.aspx last accessed 2nd March 20104 Joe Moran, ‘The Curse of Mr. Barratt’ New Statesman October 9, 20065 Anna Minton, Ground Control: Fear and happiness in the twenty-first century city (London, Penguin: 2009) 616 So far the Government have not announced precisely what form the wording will take. They have previously suggested either the wording in the text or, alternatively, or using the wording in s. 254 of the Housing Act 2004. See DCLG, ‘Houses in multiple occupation and possible planning responses–consultation: Summary of Responses’ para. 2.8. It is likely to be a mixture of the two since the consultation evidence indicated a preference for a definition predicated on the 2004 Housing Act.

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distinguishing between those houses that are occupied by related and unrelated multiple occupants and between those areas where restrictions on HMO concentrations apply and those where they do not. As a certain number of HMOs will continue to exist it will not exclude all residents who wish to live in shared houses but it will almost certainly exclude some by restricting the availability of this type of accommodation. Once the quota is filled individuals will not be able to move to where they would otherwise choose to live because planning officials, rather than the market, will decide how many HMO residents should be permitted to live in any given place. This reform can be challenged on multiple grounds. To the extent that it imposes additional planning restrictions on the market in housing it is possible to argue on economic grounds that the intervention will lead to an inefficient outcome in housing provision. Alternatively the intervention can be criticised in that it excludes residents on the basis of identity, rather than according to the use of land, restricting individual choice as to household companions. It is these two objections that have underpinned the otherwise unlikely combination of the British Property Foundation the National Union of Students who joined forces to lobby against this proposal. A third argument, and the one presented here, is that articulating concern about HMO concentration as one of ‘incomers’ causing problems for existing residents is to oversimplify a complex, polycentric problem. It uses the law to separate and exclude without considering the broader legal landscape where other provisions are working to re-couple severed connections and to reflect the spatial consequences of difference.

This practice of ‘exclusionary zoning’ has been widely acknowledged in the United States. Courts and scholars have considered to what extent a community is able to prevent some potential residents from moving in by setting minimum requirements for land use, for example, relating to plot size or use as a single family home that other individuals are unable to afford. Municipalities’ ability to zone is well understood as ‘a central mechanism for controlling entrance into a community’.7 Consistently, however, the Supreme Court has held that such exclusion is not unconstitutional.8 Instead such provisions have been held to represent the preferences of local citizens9 which the municipalities are able to implement unless the 7 Richard C. Schragger, ‘The Limits of Localism’ 100 Mich. L. Rev. 373 2001-2002 4058 Notably in Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) and Village of Belle Terre v Boraas 416 U.S. 1 19739 In Euclid the Supreme Court did not directly engage with the nature of the decision-making process and whether the community should give a priority to current residents. It was content to note that the village ‘presumably representing a majority of its inhabitants and voicing their will, have determined’. In other cases such as James v Valtierra 402 U.S. 137 1970 and Eastlake v Forest City 426 U.S. 678 1975 the Supreme Court upheld the decision of referenda in which

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provisions are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare’.10

In the United States these land use decisions not only decide which type of property (and so which type of owner) is permitted in any given location, they also have significant implications for the tax base, frequently providing the more exclusive communities with significantly better facilities and lower taxes.11 Since local taxes are not required to support those who cannot afford to live in these larger properties, they will not be required for many of those whose needs are more significant and more expensive.12 This link between incorporation and taxation is not as explicit in the United Kingdom. Yet local authorities with wealthier residents are also faced with fewer demands and so may reduce their taxes accordingly. Since residents who live in HMOs are often vulnerable, their frequent transience may render them homeless and they may have health or other needs. Consequently, however ‘improper’ such motives might be, there are extrinsic motivations for local authorities who might wish to reduce the number of HMOs in their area to reduce their liabilities. Whilst clearly an extreme case, when Westminister Council identified ‘homelessness/ gentrification’ as one of the key issues to electoral success in the 1990 elections they did so because they knew that residence would have implications beyond housing itself.13 These boundary lines signify more than just where people live.

To explore these concerns this paper will proceed in three parts. It will begin with an overview of HMO occupation and the incoming change to the rules on using properties as an HMO. It will then analyse the concerns raised by the spatial concentration of houses in multiple occupation. These are first, complaints relating to anti-social behaviour and increased density that are considered in Part 2. Complaints also concern the process of (essentially urban) change that alters the character of a neighbourhood making communities ‘unbalanced’ according to the official justification for reform. Part 3 will suggest that given this concern, implementing a mechanism of exclusion with almost no regard for the landscape of governance

only local residents were permitted to vote.10 Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), 39511 Vicki Been, ‘Comment on Professor Jerry Frug's ‘The Geography of Community’, 48 Stan. L. Rev. 1109 1995-1996 12 Richard Briffault, ‘Our Localism: Part I – The Structure of Local Government Law’, 90 Colum. L. Rev. 1 1990 and Richard Thompson Ford, ‘The Boundaries of Race: Political Geography in Legal Analysis’ 107 Harv. L. Rev. 1993-199413 Since owner-occupation was identified with voting Conservative they developed a gentrification policy where gentrification ‘is ensuring that the right people live in the right areas’. Porter v Magill [2002] 2 A.C. 357, Dave Cowan, ‘Rage at Westsinster': Sociolegal Reflections on the Power of Sale’, (2003) 12 Social Legal Studies 177

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that patterns housing and planning law reflects a reflex to separate and fails to understand the more complex role of law in these complex and polycentric land use disputes.

1. Houses in Multiple Occupation

There is considerable uncertainty at both national and local level about how many HMOs there are or who lives in them. In 2006 the Government’s ‘best estimate’ was that there are 700,000 HMOs in England, with 300,000 that are sufficiently large (over three storeys) to attract mandatory licensing.14 More recently, in 2010, the Government have estimated that there are between 236,000 and 379,000 HMOs in England15 a difference of over 50% reflecting the lack of reliable data. While this reflects a lack of sustained information gathering at the national level, it is also evident that distinguishing between the ‘known’ and the ‘hidden’ market and interpreting the rather tortuous definition of an HMO under the 2004 Housing Act are extraordinarily complex tasks. The current estimate of shared houses, perhaps the archetypal understanding of an HMO, is approximately 135,000 in England16 though only a minority (10% according to one recent report) have over 500 three storey, licensable, HMOs in their area.17 Certainly, most HMOs are found in urban areas, with the highest concentration in London.18 Given this uncertainty, however, policy reforms are to some extent operating in the dark.

1.1 Justifications for Reform

Complaints about houses in multiple occupation can be broadly divided into two groups. The first is that HMOs are said by lobby groups to produce anti-social behaviour, including noise, problems with rubbish collection and a failure to maintain the exterior of the properties or their front gardens. Lobbyists19 have told of ‘unkempt property frontages and litter strewn over local streets’20 and

14 DCLG, Evaluating the Impact of Houses in Multiple Occupation and Selective Licensing: The baseline before licensing in April 2006, 315 DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010) 2316 DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010) 2417 LACORS, ‘Houses in Multiple Occupation (HMO) Licensing Survey Report’ (2007) 718 LACORS, ‘Houses in Multiple Occupation (HMO) Licensing Survey Report’ (2007) 719 Under the umbrella of the National HMO Lobby sn association of approximately fifty community groups in thirty towns http://hmolobby.org.uk/index.htm. They have been supported by the All-party Parliamentary Group for Balanced and Sustainable Communities.20 CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008) 14

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‘negative impacts on the physical environment and streetscape’.21

Related to this concern is intensification, leading to increased density and, in particular, significantly increased demand for parking. Since many HMOs are in urban areas, parking causes particularly acute disputes.

The second source of concern is more difficult to address, both practically and normatively. It criticises the increase in HMOs for changing the character of a neighbourhood.22 HMO concentration is said to put pressure upon local community facilities and requires local retail, commercial services and recreational facilities to restructure to suit the lifestyles of the newly predominant population.23 This concern is itself located within a broader narrative that concentration of HMOs leads to ‘unbalanced’ communities24

and that this transformation is at odds with the Governments ‘sustainable communities’ agenda.25 Underpinning this concern for change is an occasionally articulated but often implicit understanding of the preferred occupier. Very broadly, it appears that the ‘preferred occupiers’ in the contested locations are families and/or owner occupiers.

1.2 Planning Regulation & HMOs

The revision to the 1987 Use Classes Order will, from April 2010, requires an application for planning permission to be made whenever a house is used by three or more people as this will constitute a ‘change of use’.26 To assist in distinguishing between different types of use, the Use Classes Order 1987 establishes distinct categories including Class C3, ‘use as a dwellinghouse’.27 If 21 CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008) 722 ‘John Healey: Local powers for councils to protect communities and improve standards in the private rented sector’ CLG Press Release, 27 January 201023 CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008) 24 CLG ‘Houses in multiple occupation and possible’ planning responses–consultation Summary of Response’ (2010) 3425 Darren Smith, ‘The Politics of Studentification and ‘(Un)balanced’ Urban Populations: Lessons for Gentrification and Sustainable Communities?’ (2008) 45 Urban Studies 2541–2564 and see generally the HMO Lobby Group at http://hmolobby.org.uk26 s. 57 Town and Country Planning Act 1990.This triggers an application for planning permission whenever there is ‘development’ or a change of use. Generally the use of a property as an HMO does not entail building work and entire houses are rented out with an occupant in each bedroom and frequently in the living room and dining room as well. Should, for instance, a loft extension be desired to house further occupants then a separate planning application for development must be made.27 ‘Use as a dwellinghouse (whether or not as a sole or main residence)— (a) by a single person or by people living together as a family, or (b) by not more than 6 residents living together as a single household (including a household where care

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the use of a property is changed from this use to one categorised as a house in multiple occupation, this will trigger a requirement to apply for planning permission. Once an HMO is listed as a separate class, such a change will be caught by the requirement to apply for permission if there is a ‘material change’ in the use of any buildings or other land.28

In the past, there have been some circumstances where such an alternation has triggered a ‘material change of use’ but the precise dividing line between a ‘dwelling house’ and a house in multiple occupation has been highly contested.29 It is for this reason that the current government responded to intense lobbying first with an ‘evidence gathering’ report followed by a 2009 consultation paper, HMOs and possible planning responses.30 Since the 948 responses31

were overwhelmingly in favour of requiring planning permission to use a property as an HMO, the Government has pledged to introduce the new use class by April 2010.32 If planning permission is sought to convert a house into an HMO after this date, local authorities must determine the applications in accordance with their development plans unless ‘material considerations’ dictate otherwise. So far, development plans have taken two approaches to justify rejection of an application for planning permission for an HMO.

The first approach has been to identify spatially limited ‘areas of restraint’. In Leeds and Exeter, for example, these spatial characterisations enable planners determining applications for planning permission to ‘resist development, including change of use, which will increase existing concentrations of student is provided for residents)’, Town and Country Planning (Use Classes) Order 1987/764 28 S.55(1) Town and Country Planning Act 199029 See Planning Circular 03/05 Circular 03/05: Changes Of Use Of Buildings And Land - The Town and Country Planning (Use Classes) Order 1987, Tessier v Secretary of State for the Environment (1976) 31 P. & C.R. 161, R. (on the application of Bennett Fergusson Coal Ltd) v First Secretary of State [2004] 1 P. & C.R. 30, Mornford Investments Ltd. v. Minister of Housing (1970) 21 P. & C.R. 609 and Helen Norris, “The new Use Classes Order” JPEL 1987 819 at 830. In the context of switching from a dwelling house to an HMO see Simon Brown LJ in R (On the application of Yvonne Hossack) v Kettering Borough Council,30 DCLG, Houses in multiple occupation and possible planning responses (2009)31 Three quarters of the responses came from individuals, CLG ‘Houses in multiple occupation and possible’ planning responses–consultation Summary of Response’ (2010) 4 32 ‘John Healey: Local powers for councils to protect communities and improve standards in the private rented sector’ CLG Press Release, 27 January 2010. Even if the requirement to apply for planning permission is quickly implemented, until local authorities have developed supplementary planning guidance or some other means to implement a policy that will justify the refusal of the application, applications would still have to be granted. This was evident in the Northern Ireland experience of implementing the Planning (Use Classes) Order (Northern Ireland) 2004 SI 458/2004, ‘How to deal with division’, Planning 18 April 2008

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accommodation in parts of the inner urban areas, particularly housing in multiple occupation’. They also encourage the ‘wider dispersal’ of shared student accommodation throughout the city as well as the provision of purpose built student accommodation close to universities.33 These policies use maps to delineate those precise areas, drawn to include some roads and exclude others, creating smaller spatial units than those regulated by the local planning authority as a whole.

The second strategy has been to apply a ‘threshold approach’. Thus Belfast City Council has introduced an HMO threshold of 30%34, the London Borough of Hillingdon has a limit of 15%35, Dundee City Council has a limit of 12.5%36 while Glasgow City Council has a cap of just 5%37. Nottingham City Council, meanwhile, has a limit of 25%38 student HMOs identified by council tax exemptions in its City Plan, while Charnwood Borough Council in Loughborough has a level of 20%.39 These thresholds are rarely absolute. In Nottingham, for instance, if the number of student HMOs exceeds 25% in specified areas, the application will be refused ‘unless the applicant can clearly demonstrate that community balance will not adversely be

33 Policy H15 of the Leeds Unitary Development Plan, for example, aims to (1) encourage wider dispersal of student shared accommodation to locations throughout the city with good public transport links to the main campus sites; (2) resist development, including change of use, which will increase existing concentrations of student accommodation in parts of the inner urban areas, particularly housing in multiple occupation … and (3) encourage provision of additional purpose-built or converted student accommodation in the immediate vicinity of the main academic and residential sites of the institutions?. Leeds Unitary Development Plan, Policy H15. In Exeter the Council has identified three areas as having an existing concentration of students such that further student accommodation developments would adversely affect the character of the neighbourhood or create an imbalance in the local community. All forms of additional student accommodation that require planning permission will be resisted in these areas. Exeter City Council, Supplementary Planning Guidance: Student Accommodation Development in Residential Areas, 2008 34 Houses in Multiple Occupation (HMOs) Subject Plan for Belfast City Council Area 2015, December 2008, 3035 London Borough of Hillingdon, Houses in Multiple Occupation and other non-self contained housing Supplementary Planning Guidance to the Hillingdon Unitary Development Plan, 936 Dundee Local Plan Review, Supplementary Planning Policy Guidance, Houses in Multiple Occupation, 2006, 837 Glasgow City Plan, Policy Res 10, 40: Within a given street or block (or other readily identifiable unit)1 the proportion of multiple occupancies should not exceed 5% of the total number of dwellings comprising that unit (exemptions from this rule may include properties that have become completely isolated from family accommodation).38 Nottingham City Council, Building Balanced Communities Supplementary Planning Document, 21. 39 Their unit for assessment is the statistical Small Output Area Cluster with baseline percentages of student housing being drawn from council tax receipts, Charnwood Borough Council, Student Housing Provision in Loughborough: Supplementary Planning Document, 2005, 13 & 16

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affected’.40 In the absence of such circumstances however, if the existing threshold would be exceeded, the local authority have the discretion to reject the application. Again, these policies are applied to smaller, specifically delineated spatial units rather than the area regulated by the local planning authority as a whole.

1.3 HMO Residents

This campaign to introduce an additional use class for HMOs has been largely (though not exclusively) presented within a narrative of ‘studentification’.41 This term characterises the growth of high concentrations of students living within localities close to universities or higher education institutes often accommodated within HMOs. It frequently has negative connotations, tending to be used ‘as if it is synonymous with ‘problems’.’42 While private renting by students has a long history43, a narrative of student-led neighbourhood decline44 has been constructed which has been dramatically disseminated by the media45 While there are undoubtedly instances of anti-social behaviour amongst the student population these are widely acknowledged the minority.46 In practice these concerns are amplified by the numbers concerned. It is the increase in density that is said to ‘unbalance’ communities.

These concerns have led to considerable vilification of students. Disputes between ‘town and gown’ are longstanding and students are often aware of the antipathy locals may feel towards them.47 In 2000, for example then MP Harold Best described the universities in Leeds as being ‘like William Blake's dark satanic mills. They are

40 Nottingham City Council, Building Balanced Communities Supplementary Planning Document, 21. 41 The invention of the term is conventionally attributed to Darren Smith in his 2002 paper ‘Processes if studentification in Leeds’, a report presented to the City and Regional Office, University of Leeds, Leeds42 Universities UK, “’Studentification’: a guide to opportunities, challenges and practice”, 2006, London. The report was drafted by Darren Smith and Jane Denholm43 Linda McDowell, ‘Competition in the Private-Rented Sector: Students and Low-Income Families in Brighton, Sussex’, (1978) 3.1 Transactions of the Institute of British Geographers, 55-65, Hughes, D. and Davis, M. “Student housing: a cautionary tale of one city”, Journal of Social Welfare and Family Law 24(2) 2002: 135–15544 Hubbard, P., “Regulating the social impacts of studentification: a Loughborough case study”, 2008 Environment and Planning A, 40 323-34145 For example, Louise Tickle, ‘Here come the students – and there goes the neighbourhood’, Education Guardian, 15 May 200746 Martin Blakey, ‘Disgruntled locals cannot dictate student accommodation policy: The well-behaved majority should not suffer for the antisocial conduct of a few’, The Guardian, 6 October 2009. 47 P. Hubbard, ‘Geographies of studentification and purpose-built student accommodation: leading separate lives?’ (2009) 41 Environment and Planning A 1903-1923, 1920

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polluters blighting the landscape and the polluter must pay … The proliferation of shared houses with absentee landlords is like a medieval plague.’48 Analogously, the HMO Lobby group, the umbrella organisation for those campaigning for greater restrictions on HMOs (whose evidence and data has been accepted uncritically by the House of Commons Committee on Private Renting)49 refers on its website to institutional developments ‘outside the main student colony’ which have ‘attracted their own local colonies’ and in arguing for the restriction of council tax exemption for students suggests that ‘[t]his has the virtue of the 'polluter pays' principle’.50

Similarly, Hubbard in his study of student housing in Loughborough found that ‘projecting fears of dirt, pollution, and deviance onto students, this language of displacement is replete with metaphors more usually associated with xenophobic and racist discourse; in effect, students represent a ‘flood’ which threatens to ‘swamp’ the town.’51

This antipathy should be squarely faced. In some places there are undoubtedly ‘micro-crises’52 with percentage of student residents exceeding 35% in some wards with far higher distributions (including up to 95%) in individual streets.53 Locations are undergoing profound social and physical transformations, which are often taking place at an unprecedented pace.54 Yet while this narrative is presented as a national concern, in practice only a minority of residents are faced by this often, very severe, concern. Overall, of the 8,000 wards in England only 59 had student densities of over 10% (or 0.7% of the total) according to the census data of 2001.55

48 Quoted in Angelique Chrisafis, ‘Two square miles of housing hell’, The Guardian, 24 October 2000 49 House of Commons Communities and Local Government Committee, The Supply of Rented Housing Eighth Report of Session 2007–08, 5850 http://hmolobby.org.uk/natlocalplans.htm and http://hmolobby.org.uk/natcounciltax.htm last accessed 28 February 201051 Hubbard, P., “Regulating the social impacts of studentification: a Loughborough case study”, 2008 Environment and Planning A, 40 323-34152 Similar ‘micro-crises’ exist in the distribution of second homes, which the Government have controversially decided not to regulate, see Gallent, N.,Mace, A.and Tewdwr-Jones, M.(2002) Second homes in rural areas of England- Working Paper (CAX 113), Countryside Agency: Cheltenham53 The 2001 census revealed for example that in some wards including Headingly in Leeds, Dunkirk & Lenton (Nottingham), Carfax (Oxford) and St. Mary’s (Oxford) the proportion of students were 38%, 28%, 27% and 23% respectively, see Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008) 99 and CLG ‘Houses in multiple occupation and possible’ planning responses–consultation Summary of Response’ (2010) 3054 Rugg (2000)55 Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008) 99

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Moreover, and significantly, not all residents of HMOs are students and some (though by no means all) come from some of the most vulnerable groups in society. The 2008 Evidence Gathering Report noted that while detailed evidence is lacking, in addition to students, HMOs are the home of ‘benefit claimants, young professionals, ex-offenders [and] migrants predominantly in urban locations’.56 Most residents of HMOs are young and single, living in the premises for only a short time. They are often low-income households.57 Generally HMOs tend to be located in older housing stock and at their worst are likely to be poorly maintained, in disrepair, overcrowded and with insufficient amenities.58 In these circumstances, those residents that have the resources to live elsewhere will in many cases choose to do so.

It is also important to acknowledge that some HMO residents are almost certainly discriminated on the basis of their identity. As a leaflet produced by Boston Borough Council in Lincolnshire helpfully points out: ‘The fact that a house is occupied by migrant workers does not automatically make it an HMO.’59 There is a real concern that opposition to HMOs is driven in some contexts by considerations of race, discriminating both against established ethnic minorities and ‘not-quite white’ groups60, including migrants from Eastern Europe. Some local authorities applying voluntarily for selective licensing powers have identified serious problems of exploitation, overcrowding and poor standards particularly in HMOs occupied by migrant workers and A8 residents.61 These include properties provided informally by ‘gangmasters’62 as well as unregulated and unscrupulous landlords. There are widespread concerns that migrants are often living in quite appalling housing circumstances both as a result of poor quality and as a consequence

56CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008 57 CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008) 15, DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010) 2858 CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008)10. The Housing Act Survey 2004 Survey of Private Sector Student Housing (September 2006) identified excess cold, fire, damp, dampness and mould and falls between levels. House of Commons Communities and Local Government Committee, The Supply of Rented Housing Eighth Report of Session 2007–08, 10 there are major concerns about poor management and safety, particularly in Houses in Multiple Occupation (HMOs).59 Available at www.boston.gov.uk/index.php?option=com_docman&task last accessed 1st March, 201060 J. Gabriel, Whitewash: Racialised Politics and the Media, (Routledge, London 1998) 61 These are residents from Poland, Slovakia, Czech Republic, Slovenia, Lithuania, Latvia, Hungary and Estonia. 62 These are regulated by the Gangmasters Licensing Authority, Michael Wynn. ‘Regulating rogues? Employment agency enforcement and sections 15-18 of the Employment Act 2008’ (2009) Industrial Law Journal 64

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of a desire to cut housing costs. 63 Yet these residents too could be prevented from living in their chosen location. The complaints that have led to the calls for reform must be set in context. Opposition to increased migrant neighbours may draw, at least in part, on the notion of an ‘other’ and within that may seek to protect the privileges of an ‘unmarked whiteness’ defending this positive identity against negative ‘foreign’ influence.64 While the narrative has been crafted as one of ‘studentification’ other residents of HMOs may be far more vulnerable than the campaign groups suggest.

Indeed, in some areas where private student rental is in decline this ‘rental gap’ has been filled by other residential groups, particularly A8 immigrants from Eastern Europe.65 While these residents have again been criticised for their transience and the problems caused by rubbish, noise and car parking. Indeed, it is striking that the attacks against the Roma in South Belfast in 2009 occurred in an area affected by increasing HMO concentration in general, and of students in particular. To some extent, however, these aspects of HMOs are difficult to establish since there is a lack of current data on the ethnic breakdown of residents in HMOs.66 Ultimately whether or not NIMBY-type arguments are employed to create a ‘landscapes of exclusion’67, it is apparent that the racial subtext of this decision has not been considered at Government level except at the most superficial level.68

2. Anti-Social Behaviour, Law & Governance

63 DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010)64 Phill Hubbard, ‘Accommodating Otherness: anti-asylum centre protest and the maintenance of white privilege’ (2005) 30 Trans Inst Br Geogr 52-65 65 Smith, D, “The Politics of Studentification and ‘(Un)balanced’ Urban Populations: Lessons for Gentrification and Sustainable Communities?”, (2008) Urban Studies 45(12) 2541-256466 The census in 2011 could provide this information. It relies on a more subtle categorisation of race and ethnicity, however, building on the 2001’s census distinction between different ethnicities within the category of ‘white’. ‘[N]o national assessment appears to have been made of the overall effect of migration on the number of HMOs’ Select Committee on Communities and Local Government Committee Tenth Report, Session 2007-08, 19.67 Robert D. Wilton, Colouring special needs: locating whiteness in NIMBY conflicts , Social & Cultural Geography, 3: 3, 303 — 321 and Robert D. Wilton, ‘The Constitution of Difference: Space and Psyche in Landscapes of Exclusion’, (1998) 29 Geoforum, 173-18568 ‘We do not identify any impact on race in the operation of these options. Research work indicates that the majority of migrant occupants of HMOs are migrants from the 2004 accession countries and white European. We do not have any evidence to suggest that HMOs are the primary source of housing for other migrants or other ethnic groups’. DCLG, Houses in multiple occupation and possible planning responses Consultation (2009) A73. The DCLG have made no attempt to distinguish race and ethnicity in their analysis.

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The first concern with the new planning rule for HMOs is that is very much an instrument of ‘command’69 taking effect at a juncture of policies on planning, housing, crime, employment, health, immigration and social welfare. This is an extraordinarily complex and inter-related nexus for law and policy, where increasingly, multiple measures of governance are used either in addition or instead of instruments of ‘command’. Many aspects of the existing legal regime are chronically underfunded including the partial HMO licensing regime, enforcement of statutory nuisances70 and emerging initiatives at meeting the multiple and complex health and welfare needs of the most vulnerable residents of HMOs. Since research indicates that complaints are the leading trigger to response over concerns regarding environmental health71 this well orchestrated lobby for change, frequent aired in a sympathetic press, was perhaps always likely to be heard. While many people suggested that ‘something’ should be done, it is not clear that this reflexive desire to separate and exclude was the most appropriate legal tool. The gravity of these provisions, proposed in the absence of detailed data and a consultation that constructed the narrative almost solely within planning law with only minimal reference to the broader housing landscape, has so far been underestimated.

2.1. HMO Licensing

HMOs are already the focus of a partial licensing regime under the 2004 Housing Act, introduced as a result of successive Labour manifesto commitments to improve safety (particularly fire safety) in HMOs.72 The 2004 Act introduced a system of mandatory licensing73 and provides mechanisms for local authorities to implement additional or selective licensing regimes should they choose to do so, which generally they have not, partly because of the additional hurdles they have to meet and partly because of the bureaucracy and delay permission to introduce such additional

69 There is an important and significant literature on this point which requires further integration into this paper, see Bronwen Morgan and Karen Yeung, An Introduction to Law and Regulation: Text and Materials (Cambridge, CUP: 2007), Ian Ayres and J. Braithwaite, Responsive Regulation (New York, OUP: 1992), N Gunningham and P Grabosky, Smart Regulation (Oxford, Clarendon: 1998), Roger Brownsword, ‘Code, control and choice: Why East is East and West is West’ (2005) 25 Legal Studies 170 Under Part III of the EPA71 72 The new government of 1997 was elected on a manifesto commitment to license HMOs, and in 1999 a Consultation Paper was published on Licensing HMOs in England & Wales73 There is mandatory licensing for houses of at least three storeys and occupied by five or more people forming two or more households though smaller properties can be the subject of ‘additional’ licensing should the local authority choose to apply for these powers, see The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) England Order 2006 (SI 2006/371).

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schemes has caused.74 Although licensing has only been in force since 2006, and although fewer landlords than expected have applied for licensing, there is a suggestion that licensing has improved the quality of HMOs for many residents since the physical inspection leads to improvements in safety. Given the extreme difficulties in gathering data on HMOs, although licensing has highlighted evasion by some landlords it has also partially improved information gathering on HMOs at a local level.75

Increasingly the impact of the occupants on others is now supplementing the quality of accommodation a site of concern for HMOs. This shift was dramatically illustrated by litigation brought by landlords and related associations in Northern Ireland.76 Here landlords were required to be responsible for the acts of their tenants outside the property, a provision introduced at least partly to reflect the problems faced by residents as a result of living side by side with student communities.77 This intertwining of housing regulation and crime control, treated ‘landlords rather like the pub licensee’ potentially revoking the licence whenever criminality results from their property.78 This attempted to implicate the landlord in the characterisation of the HMO as a site of criminal and anti-social behaviour.79 In Northern Ireland this proposed condition was struck down at first instance as being in breach of Article 1 of the First Protocol of the European Convention on Human Rights for legal uncertainty. However, while the precise formulation failed before the Northern Irish courts, a similar insistence on landlord responsibility can be included in licence conditions applied to HMOs under the 2004 Housing Act in England and Wales.80

This new acceptance of the need to re-couple the landlord with the wider community reflects the Government’s own acknowledgement that landlords are frequently not up to the mark. As they note, ‘buy 74 DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010)75 DCLG, Evaluation of the Impact of HMO Licensing and Selective Licensing (2010)76 Landlords Association for Northern Ireland's Application for Judicial Review, Re [2005] NIQB 2277 Helen Carr, Dave Cowan and Caroline Hunter, “Policing the housing crisis”, (2007) 27 Critical Social Policy 10078 Helen Carr, Dave Cowan and Caroline Hunter, “Policing the housing crisis”, (2007) 27 Critical Social Policy 100, 11979 The disputed clause in the scheme introduced by the Northern Ireland Housing Executive stated that: ‘It is a condition of registration that the person having control of the house, or the person managing the house, shall take such steps as are reasonably practicable to prevent the existence of the house of the behaviour of its residents from adversely affecting the amenity or character of the area in which the house is situated, or to reduce any such adverse effect.’80 s. 67, 2004 Housing Act. This permits conditions requiring the ‘taking of reasonable and practicable steps to prevent or reduce anti-social behaviour by persons occupying or visiting the house’. A similar provision has been proposed by the Law Commission to be included in all rental contracts, see Law Commission, Renting Homes: The Final Report, Law Com 297 (2006) para. 2.32

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to let’ has increased the number of small investors living remotely from their rental properties. These landlords ‘often have little idea what being a landlord involves and no sense of responsibility or belonging to the local community. Such landlords are unable to deal with the distress that is caused for other residents when their homes are occupied by problem tenants and/or seriously overcrowded without extensive support from the local authority and other agencies’.81 Licensing provides a governance mechanism to impose obligations on landlords for anti-social behaviour committed by ‘their’ tenants and aims to cut the spatial link between the landlord and the residents neighbouring the HMO. While a pub landlord is on site and can be expected to deal with problems as they arise, in the case of privately rented accommodation the landlord is often remote. The logic of capitalism is premised on an understanding that individuals can be distant both in space and time from their capital and their income streams. This perception of a landlord as a passive investor rather than a business exercising management skills is increasingly open to debate.82

While licensing might strengthen this nexus between the landlord and the social costs of his investments, the Government has consistently rejected repeated calls for greater licensing powers83

saying that the current partial requirements still need more time to ‘bed in’.84 Given that the argument for change has been largely driven by Government sympathy for anti-social neighbourhood behaviour particularly within the narrative of studentification85 and given the consistent evidence that HMO licensing is partial and under-resourced86 this reluctance to extend licensing is 81 DCLG, ‘Evaluating the Impact of Houses in Multiple Occupation and Selective Licensing: The baseline before licensing in April 2006, Number 239, 2007, 2 82 Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008) 11183 Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008) 112-113 and Select Committee. Research at the time licensing was introduced indicated that ‘Most authorities, tenants and residents were disappointed that mandatory licensing was restricted to HMOs with three or more storeys containing five or more people in two or more households because these are not always the HMOs causing greatest risk to their occupants or greatest problems for the wider community due to poor management’, DCLG, ‘Evaluating the Impact of Houses in Multiple Occupation and Selective Licensing: The baseline before licensing in April 2006, Number 239, 2007, 3 84 DCLG, The private rented sector: professionalism and quality The Government response to the Rugg Review Consultation (2009) 1985 DCLG, New review to help people living in Houses in Multiple Occupation, 9 April 2000 available at http://www.communities.gov.uk/news/corporate/742257 and John Healey: Local powers for councils to protect communities and improve standards in the private rented sector 27 January 2010 available at http://www.communities.gov.uk/news/planningandbuilding/144762586 DCLG, ‘Evaluating the Impact of Houses in Multiple Occupation and Selective Licensing: The baseline before licensing in April 2006, Number 239, 2007

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http://www.communities.gov.uk/news/corporate/742257


disappointing. While planning law appears to adopt a mechanism of ‘command’ in isolation, in practice it is situated within the broader landscape of housing governance. Increasing resources for enforcement and extending licensing would have made a significant difference to both residents and neighbours of HMOs. Ultimately these should be hybrid, not isolated, legislative interventions.

2.2 Protecting Amenity: Balancing Enforcement with Management

Some neighbours in areas of HMO concentration are affected by, as they see it, substantial and significant instances of anti-social behaviour. The complaints generally concern rubbish collection, parking, noise and property maintenance. In many cases practical steps can be taken to mitigate the concern, in these situations a rule of exclusion is both overly simplistic and overly divisive. It is possible, for example, to avoid rubbish collection on a Monday since students who return to their parents for the weekend may leave their rubbish out to be collected on a Friday night before they go. Similarly introducing additional collections at the end of the academic year can ensure that refuse collection services are not overloaded at this time.87 Engaging with migrants by including information on recycling and refuse collection services and adding new languages to recycling banks can ameliorate concerns. Informal and often personal initial contact, using community wardens, mediators, environmental health officers and refuse staff with all residents can also help alleviate many tensions and misunderstandings.88 Similarly, parking can also be quite straightforward to resolve. Part 4 of the Road Traffic Regulation Act 1984 allows any local authority to place restrictions on parking, such as residents parking zones.89 These can be implemented at any time.

Noise is another common complaint with neighbours concerned noise at night in the case of students and unemployed residents, or noise and disruption caused by large numbers of workers leaving for work early in the morning in the case of migrants.90 Here again legal

87 Universities UK, “’Studentification’: a guide to opportunities, challenges and practice”, 2006, London.88 Audit Commission, Crossing Borders: Addressing the Local Challenges of Migrant Workers’ (2007) 2689 These may be time limited or restricted to a certain category of road user (for example, a local resident). It is up to the Local Authority to determine whether a fee would be levied and how many permits could be allocated to each property. Many councils operate a system where the first parking permit is relatively inexpensive (£30 a year) with subsequent permits increasing in price. Some authorities limit the number of permits to one or two per house. Many councils explicitly state that any person may apply for a parking scheme either by telephone or online.90 Audit Commission, Crossing Borders: Addressing the Local Challenges of Migrant Workers’ (2007) 26

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mechanisms recognise that statutory measures of ‘command’91 are best supplemented with measures aimed at conciliation.92 Disputes here are unlikely to be absolute, there is no ‘right to sleep’, they must be mediated instead. The crucial caveat here is that resources must be available.

Similarly cultural norms influence accepted standards on the state of the exterior of a property. In planning law, no consent is required for external additions to a property (such as lights, cladding or butterflies) as these conventionally fall within the permitted formula of a ‘use of any land within the curtilage of a dwelling-house for any purpose incidental to the enjoyment of the dwelling-house as such’.93 While restrictions could be included in privately concluded covenants, such as those at Poundbury in Dorset or in Bournville in Birmingham94, these are exceptional in the United Kingdom although conditions on property maintenance can be included in licensing conditions. This freedom is limited by a caveat that if premises are kept in a state which is prejudicial to health or a nuisance then enforcement of this ‘statutory nuisance’ can apply.95

Analogously, identifying and responding to claims of anti-social behaviour is also clearly dependent on context. As Millie has argued: ‘understandings of anti-social behaviour are very much dependent on people's behavioural expectations for a particular space and time … what is regarded as anti-social is also determined by social and cultural norms of aesthetic acceptability’.96 This point was emphasized by the Parliamentary Select Committee in their report on coastal towns noting that in the coastal town of Exmouth the significant number of residents over the age of 65, who were constituted the largest category (23%), ‘meant there were more pensioners than under 20s, leading to inter-generational conflicts of view; such as between the vision of the area as a peaceful retirement place or that of a vibrant holiday resort or a place for young people to enjoy’.97

Clearly characterisation of what constitutes ‘anti-social behaviour’ thus requires sensitivity. Street drinking or using outdoor space 91 s.79(1)(g) of the 1990 Environmental Protection Act92 2005 Clean Neighbourhoods and Environment Act introducing s.80(2A) Environmental Protection Act 199093 Under the 1997 General Permitted Development Order. In Croyden v Gladden [1994] 1 P.L.R. 30 this did not extend to include replica spitfire, a tank or an inflatable Winston Churchill94 Martin Knox and David Alcock, Approaches to community governance: Models for mixed tenure communities, (Anthony Collins Solicitors, Birmingham) 2002, 395 Section 79(1)(a) Environmental Protection Act 1990 96 Andrew Millie, ‘Anti-Social Behaviour, Behavioural Expectations and an Urban Aesthetic’ (2008) 48 Brit. J. Criminol. 379–394 97 House of Commons Communities and Local Government Committee, Coastal Towns Second Report of Session 2006–07, London, 2007, 49. See also

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when neighbours are unfamiliar with each other, for example, can be perceived as extremely intimidating by some, particularly by the elderly, and innocuous by others. It is important to acknowledge that fear of crime is subjective and that this can in some circumstances be deeply distressing and debilitating.98 There is a widespread concern that students, in particular, have often been able to behave in an unsociable manner. As Rugg and Rhodes noted in their commissioned and highly influential review of the private rental sector: ‘many of the ‘housing’ problems being described are in fact policing issues. There is a general willingness to use criminal sanction to contain anti-social behaviour when it is connected with deprivation and social exclusion on social housing estates. However, there is an understanding that student behaviour – however threatening, damaging or disruptive – should stand outside the law’.99 Yet here again there are examples of good practice100, with Universities in particular re-coupling the connections between themselves, their students and their local community.

In addition to introducing a rule of exclusion there is a clear need then to simultaneously facilitate initiatives to improve local amenity and quality of life for all residents. There is a need for tolerance and consideration here that practitioners are often skilled in generating, if given the resources. These are not the only form of community disagreement. Religious conflicts for example, where the building of a place of worship, such as a mosque101, or an eruv102 also infringe some residents’ characterisation of place. These are disputes that require administrators and lawyers to consider how planning law and policy should be used to address the spatial consequences of difference in locations that are culturally, socially and spatially contested. The difficulty with using planning rules simply to separate or exclude disputed uses (and users) is that, as the United States experience demonstrates, planning ‘is a means by which groups can encourage uses of physical spaces that they like and 98 Jonathan Jackson, ‘Experience and expression: social and cultural significance in the fear of crime’ (2004) Brit. J. Criminol. 94699 Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008)100 Universities UK, “’Studentification’: a guide to opportunities, challenges and practice”, 2006, London.101 Urfan Khaliq, ‘The accommodation and regulation of Islam and Muslim practices in English law’ (2002) 6 Ecclesiastical Law Journal 332-351, 337-341, Irem Ayhan, K. Mert Cubukcu, Explaining historical urban development using the locations of mosques: A GIS/spatial statistics-based approach, Applied Geography 30 (2010) 229–238102 Davina, Cooper, ‘Promoting injury or freedom: radical pluralism and orthodox Jewish symbolism’, (2000) 23.6 Ethnic and Racial Studies, 1062 -1085, Sophie Watson, ‘Symbolic spaces of difference: contesting the eruv in Barnet, London and Tenafly, New Jersey’ (2005) 23 Environment and Planning D: Society and Space 2005, 597-613 and Richard D. Hecht, Active versus Passive Pluralism: A Changing Style of Civil Religion?, (2007) 133 The ANNALS of the American Academy of Political and Social Science; 612

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discourage uses they do not like, a powerful instrument for instituting and transmitting norms of behavior spatially.103 While a policy of exclusion suggests that one ‘side’ should be able to have priority over the other, policies of co-existence are better placed to mediate between different uses of the land. This requires more than simple instruments of ‘command’.104

2.3 Responding to Transience

Interwoven with claims of anti-social behaviour is the observation that many residents of HMOs are often transient, taking no interest in their community and failing to contribute to the improvement of the local neighbourhood. Such a claim clearly characterises students but also extends more broadly. The 2007 Select Committee on Coastal Resorts, for example, noted that ‘the availability of HMOs can attract a transient population into an area, which can bring particular challenges, particularly increasing the difficulty in gaining community involvement in local regeneration initiatives’.105 This theme is also taken up supplementary planning policies providing a basis for refusal for applications to use properties for multiple occupation. The Glasgow City Plan, for example, states that HMOs ‘whose distinctive demographic (typically, young, high-density, transient, and unstructured) destabilises the local community.’106

Similarly, the Belfast City Plan, maintains that ‘transient households tend not to make a long term investment in their local environment and this may have a detrimental impact on the visual appearance of a neighbourhood.’107

While this criticism is made of residents in HMOs, it also characterises the broader private rental landscape where a typical tenancy has been estimated to last between 15 and 18 months.108

While the question of transience is complex, it is evident that low income residents of both HMOs and throughout the private rental sector as a whole are often unable to settle.109 There is concern that tenants fear ‘retaliatory evictions’110 if they complain about the quality of their property, which is much poorer in the private rental 103 Richard C. Schragger, ‘The Limits of Localism’ 100 Mich. L. Rev. 373 2001-2002 374104 Bronwen Morgan and Karen Yeung, An Introduction to Law and Regulation: Text and Materials (Cambridge, CUP: 2007)105 House of Commons Communities and Local Government Committee, Coastal Towns Second Report of Session 2006–07, London, 2007, 19106 National HMO Lobby, “Balanced Communities and Studentification”, 2008, Leeds, 5107 However, this must be balanced with the potential vibrancy and advantages they can bring to an area. 108 House of Commons Communities and Local Government Committee, The Supply of Rented Housing: Eighth Report of Session 2007–08, 52109 Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008) 106

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sector than in either the social renting market or for owner occupiers.111 This is a complex matter, with multiple niche markets of tenants (from the wealthy short term business-let to the family who aspire to a secure ‘social’ tenancy).112 Overall transience, or rental ‘churn’, is a consequence not only of individual tenant choice but also to some extent at least the consequence of a rental system that prizes liquidity and flexibility for the landlord over security of tenure for the tenant. Reforms have been widely proposed.113 Yet in the context of planning restrictions on HMOs, whilst highlighting the difficulties transient HMO residents pose, no mention has been made of these debates. It is as if the conceptual divide between planning and housing cannot (or will not) be bridged.

2.4 The Spatial Implications of Difference

Just as the regulation of amenity and anti-social behaviour surrounding HMOs oscillates between the landlord and the tenant, so the distinction in planning law between the use of the land and the identity of the occupier is blurred when it is applied to HMOs. The introduction of a new use class portrays these two uses as different even though using a property as a ‘dwelling house’ rather than for ‘multiple occupation’ in practice entails very similar activities including sleeping, eating and leisure. Critics will argue that the uses are different because of intensification. Yet no planning restriction is proposed if families grow and use their land more intensively as well. Distinguishing between sets of residents on the basis of their relationship raises concerns, particularly if people live with friends or strangers as a consequence of poverty or ill-health rather than choice. This raises the question: to what extent is this new requirement to apply for planning permission a rule based on exclusion, requiring some people to live in less contested (and less favourable) locations instead?

Certainly discrimination on the basis of race, ethnicity, gender, and disability in access to housing is prohibited. The Race Relations Act

110 Citizens Advice Bureau, The Tenant's Dilemma --Warning: Your Home is at Risk if you Dare Complain (2007)111 English Housing Condition Survey112 See generally Law Commission, Renting Homes: The Final Report, Law Com 297 (2006), Julie Rugg and David Rhodes, The Private Rented Sector: Its Contribution and Potential (Centre for Housing Policy, York: 2008), DCLG, The private rented sector: professionalism and quality: The Government response to the Rugg Review Consultation, (2009), Martin Partington, ‘Taking renting seriously?’(2009) Journal of Housing Law 1 and Caroline Hunter, ‘The Government response to the Rugg review: finding directions of travel or stalled at the first hurdle?’ (2009) Journal of Housing Law 97113 Law Commission, Renting Homes: The Final Report, Law Com 297 (2006)

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1976114, the Sex Discrimination Act 1975115 and the 1995 Disability Discrimination Act116 provide the backbone of this regulatory framework, supplemented by the application of the European Convention of Human Rights.117 Individuals are protected against indirect as well as direct discrimination that is both detrimental and unjustifiable.118 Yet self evidently these protections do not apply to people simply because they are poor or because they are mentally ill. To use the language of the United States, neither the poor nor the mentally ill are a ‘protected class’.119

To some extent these distinctions are not significant in that increasingly, planning law and policy consider not only whether a decision is itself discriminatory but they also require plans to plan inclusively in order to accommodate difference. This has been strikingly evident in the cases brought both in the United Kingdom and in the European Court of Human Rights by gypsies and travellers against representatives of the ‘settled’ community in a planning and property system premised on sedentarism and local attachment.120 The outcome of these challenges is to require public bodies to consider whether the impact of their decision will have a discriminatory effect where the obligation is understood as one of needing to promote equality of opportunity between persons of 114 The Act is largely enforced by the Commission for Racial Equality who can issue ‘non-discrimination notices’ in cases of a finding of unlawful discrimination, s.58 of the Race Relations Act 1976. It has been amended in light of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 115 Section 30 in relation to entry onto the housing register and allocation from that register116 Sections 22 and 24 apply the same provisions re the letting of property117 In particular the non-discrimination Article 14 applied in conjunction with the breach of a substantive Convention obligation, generally either Article 6 (the right to a fair hearing) or Article 8 (the right to family life and home). These are directly applicable in the law of England and Wales, following the Human Rights Act 1998. 118 S. 1 Race Relations Act 1976. It is plausible that indirect discrimination would cover the situation in Arlington Heights where the applicants were unable to claim discrimination in the U.S. Supreme Court. 119 In the United States one way to consider this is to ask whether these individuals fall into a protected class. In federal law the poor or the mentally ill are not a protected class (see City of Cleburne v Cleburne Living Center, Inc 473 U.S. 432 1984 in the case of land use and mental disability and South Burlington County NAACP v. Township of Mount Laurel (Mount Laurel I 336 A.2d 713, 718 (N.J. 1975)).120 See Brentwood BC v Ball [2009] EWHC 2433, R. (on the application of Rafferty) v Secretary of State for Communities and Local Government [2009] EWCA Civ 809 Basildon DC v McCarthy [2008] EWCA Civ 1586, R. (on the application of Holland) v Secretary of State for Communities and Local Government [2009] EWHC 2161, South Cambridgeshire DC v Gammell [2008] EWCA Civ 1159 In the ECHR see Buckley v United Kingdom (1997) 23 EHRR 101, Chapman v United Kingdom (2001) 33 EHRR 18, Connors v United Kingdom (2004) 40 E.H.R.R. 189. For an overview see Ralph Sandland, ‘Developing a jurisprudence of difference: the protection of the human rights of travelling peoples by the European Court of Human Rights’ (2008) 8 H.R.L. Rev. 475-516.

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different racial groups and those with different lifestyles.121

Again, these assessments are on the cusp between the use of the land and the identity of the user. They question the conventional assumption that ‘the question of who is to occupy premises for which permission is to be granted will normally be irrelevant.’122

While conventionally only exceptional circumstances can justify a personal grant of planning123, this distinction has been considered sympathetically in the case of gypsies and travelers. Planning permission was for instance ultimately approved by the House of Lords enabling a 62 year old Romany gypsy woman keep her caravan on greenbelt land given her accepted ‘rooted fear of and objection to being put in permanent housing where she feared she would be unable to cope’.124 Her race here was irrelevant, it was her status as a gypsy that was held significant. Here, and in related planning guidance125, arguments of identity supplement conventional provisions on race to justify a pro-active land use policy that understands and respects difference as an essential strand of equality.

Slowly but surely this trend is becoming accepted as a key aspect of how to ‘do’ planning. The 2005 good practice guide ‘Diversity and Equality in Planning’ for example is emphatic in its explanation of the need to consider diversity and difference from the outset:

‘Just as ‘people’ is not a monolithic concept, neither is ‘place.’ The planning system has helped to sustain the variety of England’s townscapes and countryside. It has been less confident in addressing the increasing social and cultural diversity of places today… ‘One size fits all’ is not appropriate

121 Race Relations Act, Part X. For an application of these provisions in the planning context see R. (On the Application of Baker) v Secretary of State for Communities and Local Government [2008] 2 P. & C.R. 6122 DOE Circular 11/95 The Use of Conditions in Planning Permissions, para. 92. This also sets out the parameters for agricultural, occupational and other conditions attached to the grant of planning permission. See also Fawcett Properties Ltd v Buckingham County Council [1961] AC 635, Epping Forest District Council v Scott (1985) 53 P & CR 79 Peak Park Joint Planning Board v Secretary of State for the Environment [1991] 1 PLR 98, The Queen on the Application of Paul Donovan v The First Secretary of State, North Warwickshire District Council [2004] EWHC 224, South Oxfordshire DC v Secretary of State for the Environment, Transport and the Regions [2001] J.P.L. 233, Knott v Secretary of State for the Environment (1996) 75 P & CR 65, Times Investment Ltd v Secretary of State for the Environment (1990) 61 P & CR 98 123 The Queen on the Application of Paul Donovan v The First Secretary of State, North Warwickshire District Council [2004] EWHC 224, South Oxfordshire DC v Secretary of State for the Environment, Transport and the Regions [2001] J.P.L. 233, Knott v Secretary of State for the Environment (1996) 75 P & CR 65, Times Investment Ltd v Secretary of State for the Environment (1990) 61 P & CR 98124 South Buckinghamshire DC v Porter (No.2) [2004] UKHL 33. She also suffered from ill-health. See also Doncaster Metropolitan Borough Council v First Secretary of State [2003] EWHC 995125 ODPM Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites

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when considering people or place’.126

Ostensibly, reflecting this insight, an integrated and inclusive approach now lies at the heart of modern planning policy127 as it does in the National Strategy for Neighbourhood Renewal128 and the Framework for Regeneration.129 As a 2003 Government report accepted, linking together the need for an appreciation of diversity and an integrated approach in both law and governance:

‘A new culture of British planning needs to celebrate diversity, to include not exclude, to speak the language of rights and responsibilities, and to be an integral part of the wider modernisation of governance.’130

The tide is generally turning against separatist measures of command and in favour of networked, integrated governance to address polycentric land use concerns.

While this trend is still incipient, and the application of planning law and judicial review in caselaw to minorities other than gypsies and travellers is still more frequently premised on the prohibition of discrimination than mandating a proactive appreciation of difference,131 these developments suggest a growing appreciation of the way in which diversity can take spatial form. In particular they question whether the use of the land and the identity of the user are as epistemologically distinct as planning law conventionally suggests and planning officers often believe.132 Different groups may have different ways of living, be that as a result of race or ethnicity, of age, sexual orientation or disability or, as in the case of the traveling community, as a result of a historically different lifestyle. Different groups may also have different requirements and different preferences. The challenge for land use policy is to determine how this should be reflected ‘on the ground’ and to consider how disputes can be resolved. The application of a policy of partial exclusion to different users either side of an invisible (and frequently rather arbitrary) line appears to be wholly out of context when set against the current landscape of planning and housing law and governance.

3. Exclusion or Coexistence: (Un)articulated Preferences

126 ODPM, Diversity and Equality in Planning: A Good Practice Guide’ (2005) 15127 ODPM ‘Planning Policy Statement 1: Delivering Sustainable Development’ (2005)128 Social Exclusion Unit, ‘A New Commitment to Neighbourhood Renewal’ (2001)129 DCLG, ‘Transforming places; changing lives - A framework for regeneration’ (2008)130 ODPM, ‘Participatory Planning for Sustainable Communities: Communication media technologies International Experience of Mediation, Negotiation and Engagement in Making Plans’ (2003) para. 1.1 131 See for example Harris v Haringey LBC [2009] EWHC 2329132 ODPM ‘Planning Policy Statement 1: Delivering Sustainable Development’ (2005) 27 and for surveys with planning officers see ODPM, Diversity and Equality in Planning: A Good Practice Guide’ (2005) 15

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3.1 Sustainable Communities

The new planning restrictions on HMOs are justified by the Government as a way to ‘restore community balance’.133 This notion of balance or more precisely, imbalance, has not been defined. It seems to be linked to the aim of creating ‘sustainable’ communities134 even though the meaning of the word sustainable is equally contested. To the extent that sustainability implies continuity and resilience it is quite evident that in many locations, given the overall majority of owner-occupiers, homogenous groups are frequently permitted to develop. There is no suggestion that such homogeneity is unsustainable for those communities themselves (although clearly such segregation of wealth may cause problems elsewhere). In practice this tension between homogeneity (or majority) and imbalance is rarely evident because ‘mix’ and ‘balance’ are policies conventionally applicable to areas of deprivation and concern. As Cole and Goodchild note: ‘the promotion of social mix and balance in contemporary policy has been shaped by notions of the underclass, social exclusion and the development of social capital in poorer communities.’135 While planning policy aimed at housing is now tasked to ensure the creation of ‘sustainable, inclusive, mixed communities in all areas, both urban and rural’136 in terms of ‘social balance’ these aspirations are limited to the locations of greatest need.

At the heart of this pursuit of balance or sustainability lies a cultural and political understanding of community itself. In particular it questions whether communities consist of people that have cultures, aspirations and lifestyles in common or whether they are marked by difference and diversity. Thus Gerry Frug refuses to ‘cede the term community to those who evoke the romance of togetherness’137 while Iris Marion Young is willing to contrast a close-knit notion of community with the ‘ideal of city life’ defined as ‘the being together of strangers’.138 Criticisms of HMO concentration as leading to ‘unsustainable’ or ‘imbalanced’ communities139 include a concern that the character of the affected community changes and 133 CLG ‘Houses in multiple occupation and possible’ planning responses–consultation Summary of Response’ (2010) 34134 ODPM, Sustainable communities: building for the future, (2003)135 Ian Cole and Barry Goodchild, ‘Social Mix and the ‘Balanced Community’ in British housing policy – a tale oftwo epochs’ GeoJournal 51: 351–360, 2001 351136 DCLG, Planning Policy Statement 3: Housing, 6137 Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047, 1047-51 (1996)138 Young, Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press: 1990) 236139 CLG ‘Houses in multiple occupation and possible’ planning responses–consultation

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that these changes put pressure upon local community facilities, requiring local retail, commercial and recreational services and facilities to restructure to suit the lifestyles of the newly predominant population.140 The suggestion appears to be that before these ‘influxes’ of new residents, these communities were balanced (and presumably sustainable) but that their character changed when the new residents came in.

As those concerned with providing affordable housing have consistently found, identifying what constitutes a ‘fair’ share is both uncertain and contentious. In particular, there has been no national guidance on what proportion of HMO residents make a community unbalanced or unsustainable. Local authorities have made their own determinations, ranging from 5% in Glasgow to 25% in Nottingham. These are the broad thresholds established in supplementary planning document as providing a justification for planning permission for HMOs to be refused. This raises the debate: if a student concentration makes a community ‘unbalanced’ when it exceeds 25%, then is a community balanced if the percentage of owner occupiers exceeds say, 90%, as it does in many parts of the country? On what social mix are our communities to be based? It is clear that frequently people wish to live surrounded by people who share their lifestyles and aspirations. This is as true of owner occupiers as students, of retirement communities and families with young children. If families with young children, for example, choose not to live in city centre redevelopments then ‘[g]randiose government sustainability aims of creating the truly balanced community which includes many children’ cannot be sustained.141

3.2 Homogeneity or ‘Balanced’ Communities

These questions of exclusion and co-existence, homogeneity and multiplicity lay at the heart of the landmark United States decision in Belle Terre v. Boraas. Here the Supreme Court upheld an ordinance that restricted use of the property to one-family dwellings.142 No more than to two unrelated residents could live in Summary of Response’ (2010) 34, Darren Smith, ‘The Politics of Studentification and ‘(Un)balanced’ Urban Populations: Lessons for Gentrification and Sustainable Communities?’ (2008) 45 Urban Studies 2541–2564 and see generally the HMO Lobby Group at http://hmolobby.org.uk140 ‘John Healey: Local powers for councils to protect communities and improve standards in the private rented sector’ CLG Press Release, 27 January 2010 and CLG Evidence Gathering – Housing in Multiple Occupation and possible planning responses Final Report (2008)141 Rosemary D. F. Bromley, Andrew R. Tallon and Colin J. Thomas ‘City Centre Regeneration through Residential Development: Contributing to Sustainability’ (2005) 42 Urban Studies, 2407–2429. This study found that families with young children did not wish to move to city centre redevelopments, making the achievement of a social mix in these locations a rather fruitless task. 142 The word ‘family’ as used in the ordinance means, [o]ne or more persons- related by blood, adoption, or marriage, living and cooking together as a single

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the house, with the exception of (an unspecified number of) ‘household servants’. The Dickinsons had let the house to students and objected to relinquishing the lease in order to return the property to single family occupancy. The Court upheld the ordinance as a valid instance of municipal land use planning premised on a valid exercise of the State of New York’s ‘police power’.

Delivering the majority opinion Justice Douglas characterised the restriction as an example of ‘economic and social legislation where [State] legislatures have historically drawn lines’ rather than as an infringement of civil liberties restricting the ability of people to live as they choose. In succinctly reaching his decision he elided restrictions to protect amenity with a paen to the merits of surburban living:

‘The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds. A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.’

Despite the sustained criticism the decision has attracted, the decision in Belle Terre remains a valid expression of United States federal law.143 By holding that it was not unconstitutional to zone exclusively for family use the decision has been widely interpreted as authorising ‘exclusionary zoning’ where ordinances ‘exclude classes of persons from a specified area’144 on the basis both of the effects multiple occupancy would have on local amenity and because the ordinance enabled the municipality to develop as a place of one-family occupancy.

One of the striking conclusions of the Supreme Court in Belle Terre is the acceptance of homogeneity and the (largely implicit) belief that a community is entitled to replicate itself solely in its own image, with no need to provide for difference. Self-segregation is both permitted and legally facilitated. This assumption was famously challenged in New Jersey, where its Supreme Court in South Burlington County NAACP v. Township of Mount Laurel (Mount Laurel I)145 held that not only could the municipality not discriminate housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.’143 Some State Supreme Courts have developed distinctive approaches, on the basis of [local jurisdiction] see State v Baker 81 N.J. 99, 405 A.2d 368 and City of Santa Barbara v Adamson 27 Cal.3d 123 (1980)144 Lawrence Gene Sager ‘Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent’ 21 Stan. L. Rev. 767 1968-1969 145 336 A.2d 713, 718 (N.J. 1975). Norman Williams ‘The Background and Significance of Mount Laurel II’ 26 Wash. U. J. Urb. & Contemp. L. 3 1984, Norman Williams and Tatyana Doughty, ‘Studies in Legal Realism: Belle Terre, Mount Laurel and Berman’ 29 Rutgers L. Rev. 73 1975-1976

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against the poor when zoning146 but that ‘every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor’. When the municipality failed to implement zoning that fitted these criteria, the New Jersey Supreme Court in Mount Laurel II147 rejected the municipality’s proposed ordinances as insufficient. The Court set out in more detail the affirmative mechanisms that should be used, not only allowing but requiring municipalities proactively to encourage policies to provide for a ‘fair share’ low and moderate income housing.148

These debates are significant because there is growing evidence that people often wish to live in relatively homogenous groups. This has been emphasised by scholars working on gentrification where one cause of gentrification has been attributed to a thesis of ‘consumption’. This suggests that land use transformation occurs as a result of individuals choosing to live in defined areas as an expression of their cultural and economic preferences. On this analysis house moves reflect individual motivations as mediated by society, education or culture, implementing a choice on the basis of a perception of place.149 The expression of these choices may vary over time and space: the hippies of the 1960s may have had different motivations from aspirational owner-occupiers today.150

Signifcantly, these consumption preferences may not be made in isolation. The area gentrifiers choose to move to may be less a specific location than a place that is mentally constructed, reflecting a desire to be with people like themselves.

While acknowledging the continuing relevance of class, modern gentrification theorists have argued that the construction of identity and ‘habitus’ (a concept drawn from the work of the French sociologist Bourdieu) explains ‘why it is that different sections of the contemporary middle classes tend to want to live in close proximity to each other’.151 Here a notion of ‘elective belonging’ in which

146 In New Jersey the poor are considered a protected class for the purposes of equal protection, Mandara Meyers, ‘(Un)equal Protection for the Poor: Exclusionary Zoning and the Need for Stricter Scrutiny, (2004) 6 U. Pa. J. Const. L. 349, 362. This is not the case at federal level, see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 19 (1973)147 S. Burlington Co. NAACP v. Township of Mount Laurel, 456 A.2d 390, 410 (N.J. 1983)148 Although New Jersey implemented the Fair Housing Act of 1985, though this has brought its own difficulties.149 Tim Butler, 1997: Gentrification and the middle classes (Aldershot, Ashgate: 1997) 162150 Loretta Lees, ‘Super-gentrification: The Case of Brooklyn Heights, New York City’ (2003) 40 Urban Studies, 2487–2509, November 2003 151 Tim Butler, ‘for gentrification?’ (2007) 39 Env and Planning A 162-181

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‘people seek out a specific habitus by choosing a place in which to live through a differential deployment of cultural, economic, and social capital’ may develop.152 This is, sociologists assert, an attribute of the wealthier and more affluent who have no real attachment to a place itself, but rather to the people that live there with them. This analysis explains much about students, who recognise that living with or near fellow students will mean that they do not have to adapt their behaviour to fit in with the lifestyles of an older community. They are able to live in a ‘student community’. Planners however must address the spatial implications caused by people wishing to ‘flock’ with people like themselves153 even when they wish to be ‘at distance from the ‘local’ community’.154

If we accept this suggestion, that people often wish to live near people with similar lifestyles and aspirations to their own, then this raises the question. Are all preference to be the majority population equally valid? Should governments intervene to prevent some groups from ‘self-segregating’ or ‘taking over’ and if so, on what basis. In the United States there is no restriction. A municipality’s ability to separate and use its zoning power to control entrance into a community is well-established.155 The theoretical justification for such separation is often premised on a theory of localism156, the ‘legal and political empowerment of local areas’.157 As a normative ideal, this requires justification: ‘localism does not just happen’.158 In order to ‘assert local autonomy in the name of community, one needs a theory of insiders and outsiders that justifies the exercise of 152 Mike Savage, ‘Histories, belongings, communities’ (2008) 11.2 International Journal of Social Research Methodology 151–162, 161153 Tim Butler, ‘for gentrification?’ (2007) 39 Env and Planning A 162-181154 Tim Butler and Loretta Lees, ‘Super-gentrification in Barnsbury, London: globalization and gentrifying global elites at the neighbourhood level’ (2006) 31 Trans Inst Br Geogr 467–487155 Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), James v Valtierra 402 U.S. 137 1970, Eastlake v Forest City 426 U.S. 678 1975, Warth v Seldin 422 U.S. 490 1974 and Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)156 The literature here is extensive. Some leading examples are Richard Briffault, ‘Our Localism: Part I – The Structure of Local Government Law’, 90 Colum. L. Rev. 1 1990, Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 15-18 (2000), Gerald E. Frug, The City As a Legal Concept, 93 Harv. L. Rev 1057 (1980), Sheryll D. Cashin, ‘Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism’ 88 Geo. L.J. 1985 1999-2000 Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519 (1982), Robert Ellickson, ‘New Institutions for Old Neighborhoods’ 48 Duke L.J. 75 1998-1999, Gregory S. Alexander, ‘Dilemmas of Group Autonomy: Residential Associations and Community’ (1990) 75 Cornell L. Rev. 1, Georgette Poindexter, Collective Individualism: Deconstructing the Legal City, 145 U. PA. L. REV. 607, 622 (1997).157 Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 15-18 (2000), 2 and 15-17158 Richard C. Schragger, ‘The Limits of Localism’ 100 Mich. L. Rev. 373 2001-2002 374

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autonomy in its name’.159 Arguments for localism can be made in favour of economic efficiency160 or participatory democracy for its own sake.161 Conventionally, however, the claim for localism is predicated on the notion of community: localities are not the aggregate of individuals who just happen to live close to one another, they are ‘communities – groups of people with shared concerns and values – distinct from those of the surrounding world and tied up with the history and circumstances of the particular places in which they are located’.162 This again questions what we mean by community and the protection to be accorded outsiders. Under the Supreme Court jurisprudence, any consideration of ‘others’ is extremely limited (if not non-existent).

In the United Kingdom, despite the strong democratic element incorporated into both the development control and the plan-making process, a suggestion that localism should be a justification for a community to implement rules of exclusion based on community preference would be to fundamentally misunderstand the nature of planning law. Planning has, since Sir Edwin Chadwick’s Public Health Act of 1948, long been a matter of technical expertise rather than an expression of democracy. While planning law is in many ways the paradigm of participatory decision-making, fundamentally it mediates between the private interest and the ‘orthodox public administration and planning approach’ of the role of law.163 From the outset, observers have concluded that despite planning law’s ostensible aim to increase public participation, ‘in fact it [was] grounded in and motivated in practice by the ideology of the public interest’.164 This understanding of planning as a technical, expert system has also been consistently upheld by the European Court of Human Rights.165 The Court has consistently suggested that ‘[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation’.166 It is only now in the

159 Richard C. Schragger, ‘The Limits of Localism’ 100 Mich. L. Rev. 373 2001-2002 374160 Charles Tiebout, ‘A Pure Theory of Local Expenditures’, (1956) 64 J. Pol. Econ. 416 161 Carole Pateman, Participation and Democratic Theory, (Cambridge, CUP: 1970) 1-44, Gerald E. Frug, The City As a Legal Concept, 93 Harv. L. Rev 1057 (1980) 1068-1073162 Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 15-18 (2000), 17163 P. McAuslan, Ideologies of Planning Law, (Oxford, Pergamon: 1980) 2, Patrick McAuslan, Land, Law and Planning, (London, Weidenfeld and Nicholson: 1975)164 McAuslan, 49 for a recent industry perspective see Robert Evans, ‘Planning and the people problem (2)’ J.P.L. 2008, 13 Supp (Delivery or Democracy?), 87-103 165 Hatton v United Kingdom, (2003) 37 E.H.R.R. 28, Chapman v United Kingdom (2001) 33 E.H.R.R. 18 and Mellacher v Austria (1990) 12 E.H.R.R. 391166 Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149 at [52]

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context of planning for gypsy and traveller needs, planning law both in the United Kingdom and at the European Court of Human Rights has begun to understand the central value judgments that underpin many of these apparently ‘technical’ cases. Here in the most extreme cases the relevance of values, particularly human rights, comes to the fore.167 Otherwise experts continue to make the decision about how to balance any desire for homogeneity with a need for social mix. In practice these decisions are likely to remain contested and largely opaque.

3.4 Multiple not Authentic

This paper has argued that the planning reform aimed at restricting the use of properties for multiple occupation in areas that are already saturated is a measure of separation and exclusion. The change to the 1987 Use Classes Order implements an instrument of command with little regard to the landscape of governance that currently patterns housing and planning law. While such a negative prohibition is an effective measure to achieve homogeneity (or certainly a majority of certain types of preferred occupiers such as families or owner-occupiers), it does little to address the more complex difficulties faced by vulnerable HMO residents, in particular, those that are homeless, under-employed or migrants.

Nevertheless, such line drawing is unsurprising. The United Kingdom shares with the United States a liberal, atomistic conception of property premised on the ‘art of separation’168 where property is one of the paradigm rights that liberalism aims to protect. This ‘ownership model’ ‘assumes a unitary, solitary and identifiable owner, separated from others by boundaries that protect him or her from non-owners and grant the owner the power to exclude’.169

There is tenacity in the power and significance of such a conception of property so that like a more famous Hotel California, ‘we may be able to check out but never (conceptually) leave’.170 It appears that this reflex of separation, a boundary-creating impulse171, is applicable in the United Kingdom just as much as in the United States. The concern is that such boundaries can reify communities, fixing self-segregated areas on the map.172 This has implications for 167 Connors v United Kingdom (2004) 40 E.H.R.R. 189168 Michael Walzer, “Liberalism and the Art of Separation”, (1984) 12 Political Theory 315169 Nicholas Blomley, ‘Unsettling the City: Urban Land and the Politics of Property’ (London, Routledge: 2004), 2170 Nicholas Blomley, ‘Unsettling the City: Urban Land and the Politics of Property’ (London, Routledge: 2004), 5. He offers a critique of this prevailing ‘ownership model’171 Richard C. Schragger, ‘The Limits of Localism’ 100 Mich. L. Rev. 373 2001-2002 471172 Richard Briffault, ‘Our Localism: Part I – The Structure of Local Government Law’, 90 Colum. L. Rev. 1 1990 and Richard Thompson Ford, ‘The Boundaries of

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spending and for what constitutes ‘anti-social behaviour’ on the ground.

This reified spatial homogeneity and the need to balance competing desires to be the majority population causes considerable concern. Critical geographers have consistently argued that we should not substitute our concern for the vulnerable and our wish to protect and recognise attachment with a vision of the ‘authentic’ – a closed and static, reactionary view of place. Such a didactic view is particularly prevalent when boundaries or faultlines count some people ‘in’ and others ‘out’, particularly when the people on the inside are both drawing the boundary and identifying the criteria for entry. As Massey writes, ‘Horror at local exclusivities sits uneasily against support for the vulnerable struggling to defend their patch.’173 Yet it is evident in the theoretical and empirical work in geography and sociology that a shared sense of place and an ‘elective belonging’ brings like-minded people together both politically and, crucially in this context, spatially. This homogeneity of lifestyle is also apparent in many of the lobby groups arguments and claims. The normative claim the critical geographers raise may not be answered so affirmatively on the ground.

Ultimately arguments in favour of majority populations or homogeneity are clearly incompatible with claims in favour of ‘tenure mix’ or ‘social balance’ when applied across the United Kingdom as a whole. It would perhaps be more honest to limit this rhetoric to those areas of concentrated deprivation and poverty where a wide range of governance policies are implemented rather than a simple negative prohibition presented as an instrument of command. If these percentages were set by race they would clearly be discriminatory. Indeed, in some locations since such provisions would primarily be restricting migrant housing it is plausible that a claim for ‘indirect discrimination’ could be upheld.174

Overall, more nuanced solutions need to be found. For students it is possible that ‘studentification’ has already peaked.175 Institutional developments are increasingly being built, capitalising on students’ perceived ‘metropolitan habitus’ enabling many to live in city centres, away from largely residential areas and in new forms of private rented accommodation which contrast markedly with the traditional ‘student house’ or HMO.176 Evidence suggests that ‘the Race: Political Geography in Legal Analysis’ 107 Harv. L. Rev. 1993-1994173 Massey, D. for space, 2005, 5174 S. 1 Race Relations Act 1976. It is plausible that indirect discrimination would cover the situation in Arlington Heights where the applicants were unable to claim discrimination in the U.S. Supreme Court. This suggestion needs more thought … 175 Belfast City Plan, p. 24: “the signs are that the market for student accommodation may have peaked.176 Phil Hubbard, ‘Geographies of studentification and purpose-built student

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situation’ of concentrated student housing ‘is likely to correct itself if left to the market to dictate’ as more purpose built accommodation comes on stream and as student numbers start to level off.177 This admission by the Government in their consultation paper again underscores the questions surrounding their introduction of such an exclusionary rule.

Conversely more diverse policies may be required to help residents who aspire to the ‘lifestyle of preference’, but whose poverty, interrelated health and welfare needs and lack of security of tenure prevent them from achieving this aim. Analysis of the supplementary planning documentation that underpin the justifications to refuse applications for multiple occupancy indicate that these are not simply negative policies aimed at prohibiting certain acts that could already be enforced. Instead planners (and locals) often have an alternative, ideal, view of who should live in these streets instead, as was so clearly demonstrated by Justice Douglas in Belle Terre. As in the United States there is in the United Kingdom a desire to give values spatial form, particularly family life, sedentarism, property maintenance and the very British pursuit of ‘peace and quiet’.

In practice the desire for owner occupation is broadly shared. Surveys consistently reveal this to be a preferred option to rental accommodation.178 Indeed, the Conservative party has a longstanding commitment to implement Anthony Eden’s dream of a ‘property-owning democracy’179 manifested by its introduction of the right to buy council houses in the early 1950s.180 This remains a core Government strategy as well.181 Successive Labour governments have declined to introduce restrictions on this right to buy, which residents see as a ‘ticket to social mobility’ despite the immense strain it puts on council house provision, leaving behind smaller units or properties in less desirable locations.182 The impact of these decisions, however, has led to greater residualisation of social accommodation: leading separate lives?’ Environment and Planning A 2009, volume 41, pages 1903 - 1923, 1904. For further examples see Unite at http://www.unite-group.co.uk/ who currently claim to house over 39,000 students in 126 properties across 33 towns and cities across the UK.177 DCLG, Houses in multiple occupation and possible planning responses Consultation (2009) 11178 P. Laverty and N. M. Yip, ‘The preference for owner-occupation’ (1993) Environment and Planning A, 1559-1572 and 179 Jones, Gary A.(2007) 'Assessing the Success of the Sale of Social Housing in the UK', Journal of Social Welfare and Family Law, 29: 2, 135 — 150, 137180 Stephen Evans, 'The Not So Odd Couple: Margaret Thatcher and One Nation Conservatism', (2009) 23.1 Contemporary British History, 101 — 121, 109. For a modern analysis of this policy see Moira Munro, ‘Evaluating Policy Towards Increasing Owner Occupation', (2007) 22: 2 Housing Studies, 243 — 260181 ODPM, Sustainable communities: building for the future, (2003) 37182 Peter Malpass, ‘The Wobbly Pillar? Housing and the British Postwar Welfare State’, (2003) 32.4 Jnl Soc. Pol., 589–606

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http://www.unite-group.co.uk/


housing, leaving pockets of social and financial deprivation. The consequence of these policies has been to introduce a complex set of interrelated systems of governance to improve the quality of life in areas of decline. These are of an entirely different nature to the line drawing at the heart of this planning reform which appears to attempt to create homogenous communities where lifestyles of preference are prioritised. There is much that can be done to extend HMO licensing, improve security of tenure for those tenants who desire it and enforce environmental health and anti-social behaviour concerns appropriately. These complex and contested spatial and social concerns require a broad toolkit of regulatory approaches, rather than the reflex of separation.

Lastly, despite the essentially exclusionary nature of the change to the law on HMOs and planning law’s acceptance of the participatory paradigm, there is no programmatic requirement to assess the impact of these locally determined spatial categorisations either now or in the future when the new requirement is introduced. Housing data is collected through the English Housing Survey but this does not breakdown residents by race or income group. The next census may provide more detailed information in 2011 yet the proactive United States’ approach to gathering data on race is quite different from the rather more ad hoc approach in the United Kingdom.183 There is a broadly accepted lack of good quality data on HMOs that clearly limits the ability of governments, both national and local, to review the patterning of the residential geographies in these contested neighbourhoods. If local jurisdictions are to be able to determine essentially who their areas are for and what quantity of what type of persons may live where, it seems reasonable to at least implement a measure of programmatic scrutiny to these disparate, but significant, decisions.

5. Conclusion

Tackling the questions posed by HMO concentration is a complex and polycentric task. It is too simplistic simply to fall into the rhetorical narrative of residents needing to be protected against incomers. It must also consider the broader financial, societal and political context. This includes the need for cheap accommodation, where residents have little control over poor maintenance or transience, and the empirical and theoretical evidence that suggests that many individuals choose to self-segregate. If each these preferences is not as valid as the next, then this should be clearly stated and measures should be taken to achieve those values that we wish to prioritise, sendentarism, owner-occupation and the protection of family life, rather than implementing a measure of exclusion for those residents that cannot, or at this stage in their life 183 Charles E. Connerly, ‘Fair Housing in the US and the UK’ (2006) 21 Housing Studies 343

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do not wish to, live in this way. Resolving these tensions will require an extensive toolkit of interventions, an understanding of the requirements of planning, housing, criminal and equality law and governance as well as an an acknowledgement that any policy choices are ultimately premised on personal and political values. It should not rely solely on the binary logic and ‘boundary talk’ so prevalent in both property and planning law, that is itself premised on a liberal assumption of autonomy and redolent with interpretations of self.184

Ultimately, given the predominantly public interest function of planning, politicians and administrations at both the local and the national level will make these choices. Planning in the United Kingdom is conceived as a technocratic exercise rather than an expression of local democracy or an expression of communities whose membership is set in space and time. The argument presented in this paper is that it is important to set these decisions into the broader context of housing, criminal and land use law as well as to transparently acknowledge the political values underpinning apparently administrative and technical land use decisions. To achieve truly sustainable communities a policy of coexistence is preferable to one of exclusion. We should aim to re-couple rather than separate. This entails instruments that encourage the sharing of responsibility between landlords and tenants, universities and communities and governments both local and national. If the new use class is to remain for HMOs it should be supplemented with a commitment to monitor and review these exclusionary planning policies for the impact on social, racial and ethnic equality. Places are not authentic, they are the repository of multiple identities and histories. Realist critiques clearly demonstrate the ways in which law uses geography, albeit covertly, to create structures that reflect and attempt to reproduce a particular set of social arrangements.185 This is, ultimately, a measure emphasising homogeneity rather than balance. As Delaney memorably writes: ‘It is power itself … that ‘runs with the land’.186

184 Jennifer Nedelsky, ‘Law, Boundaries and the Bounded Self’ (1990) 30 Representations 162-189185 Richard Thompson Ford, “Beyond Borders: A Partial Response to Richard Briffault” 48 Stan. L. Rev. 1173 1995-1996, 1195186 Delaney, D, “Running with the land: legal-historical imagination and the spaces of modernity”, Journal of Historical Geography, 27, 4 (2001) 493–506 at 503-504 at 504

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Documents

Law of Place - Cardiff University · Web viewIn 2006 the Government’s ‘best estimate’ was that there are 700,000 HMOs in England, with 300,000 that are sufficiently large