Appeal 6000397

The appeal is dismissed.

Since the planning application was determined by the Council, the Council has adopted the Barnet Local Plan 2021-2036 (BLP). The BLP together with the London Plan (LP) now forms part of the development plan. It has replaced Barnet’s Local Plan ([name]) Development Plan Document (CS) and Barnet’s Local Plan (Development Management Policies) Development Plan Document (DMP). The main parties have had the opportunity to comment on the relevant policies of the BLP during the appeal process. Planning decisions must be based on the development plan policies prevailing at the time of determination. I have proceeded on that basis.

There is dispute between the main parties as to whether the current House in [name] (HMO) use is lawful. In the context of an appeal made under section 78 of the Town and Country Planning Act 1990 (the Act) it is not within my remit to formally determine whether a particular use has already been established or is lawful. It is open to the appellant to apply to have that matter determined under section 191 of the Act, and any such application would be unaffected by my determination of this appeal. The submitted application form references the existing HMO classification, and I have proceeded on that basis.

I have also dealt with another appeal at [address] (Ref: 6000395). That appeal is the subject of a separate decision.

The main issues are: • whether the proposed change of use would be acceptable, with regard to local need; and • the effect of the proposed development on highway safety, with regard to parking provision.

The proposed development seeks planning permission for a rear extension and the change of use of an existing HMO (C4) into three self-contained studio flats (C3 use). Amongst other things, Policy HOU04 of the BLP sets out that where an existing HMO is of a reasonable standard it will be protected, unless it is demonstrated that there is no local need for such accommodation. The evidence before me confirms that the existing HMO benefitted from an HMO license until September 2024. Based on this, and the lack of evidence to the contrary, I therefore consider the HMO to be of a reasonable standard.

Limited substantive evidence has been provided to support the appellant’s assertion that there is a declining demand for HMOs, or that there is an identified need for small scale residential units, specifically aimed at first time buyers or for the rental market. I recognise the role of small self-contained flats in providing a low-cost form of accommodation, which may be of a higher standard than an HMO. However, evidence of a level of demand for such accommodation is not the same as demonstrating there is no local need for the HMO, as required by Policy HOU04.

The appellant also contends that under the BLP all types of housing are required. However, whilst there may be an overall need for housing, Table 7 of the BLP sets out the Council’s dwelling size priorities. The lowest priority is for 1-bedroom units, whilst there is a significant need for family sized housing to be provided as part of any housing mix. Policy HOU02 goes on to outline how all housing schemes are expected to include a proportion of family sized homes and reflect these dwelling size priorities unless it can be robustly demonstrated that a variation to the preferred mix is justified on a site-specific basis. The scheme would solely provide one-bedroom units. It would therefore not reflect the Council’s dwelling size priorities. Although the word ‘expected’ is used in Policy HOU02, which may suggest some degree of flexibility in the application of the policy, there is no compelling case before me to justify a departure from the policy. Whilst the site is situated on a somewhat busy road, this does not justify providing solely 1-bedroom units, which are the Council’s lowest priority.

The BLP may support the provision of rental accommodation. The application form however states that the flats would be market for sale. Whilst the Council supports Build to Rent developments, it has not been demonstrated that the scheme would meet the definition of Build to Rent.

It is suggested that the existing HMO could be converted into one C3 unit without planning permission, the appellant could then apply for permission to subdivide and there would be no grounds to resist further subdivision. However, based on the evidence before me I cannot be certain that an application for subdivision would be approved. I therefore afford this fallback position limited weight in favour of the appeal, as it has not been demonstrated that there is a real prospect of this taking place. The lack of an Article 4 direction to prevent the change of use from an HMO to a C3 dwelling is of little relevance in this case, which seeks permission for 3 flats.

The appellant also contends that the appeal property could not accommodate a family sized dwelling due to its size. I am however not satisfied that due to this, one-bedroom units are therefore the only way to residentially occupy the property. There may be other flats in the area. However, there is little information regarding such other developments before me, and I do not know the circumstances under which they were constructed or their status with regard to planning permission. I have afforded this consideration limited weight in favour of the appeal.

Based on the above, the scheme would therefore be contrary to Policy HOU02 and HOU04 of the BLP. Collectively, these policies seek to ensure that development reflects the dwelling size priorities, and protect HMOs of a reasonable standard, unless it is demonstrated that there is no local need for such accommodation. It would also be contrary to Policy HOU03 of the BLP insofar as it seeks to reflect the priority for family sized homes. I do not agree that Policy HOU02 has been misapplied. It clearly sets out the Council’s housing priorities, which is relevant to the scheme.

The site has a public transport accessibility level (PTAL) score of 6a, meaning it has excellent access to public transport. The surrounding highways are subject to [name], such as the one hour controlled parking zone on [address]. On my site visit there was evidence of moderate parking stress, with few parking spaces available.

The Council raise concerns regarding the lack of legal agreement to prevent future occupiers from purchasing parking permits. Without this, they contend that the development would result in parking pressure and congestion and would therefore be detrimental to highway safety.

However, at present the appeal property is a 3 bed HMO and there are no existing controls in place to restrict occupiers from applying for parking permits. The proposed scheme would create 3 studio flats. It is noted that the Council consider them to be single occupancy, due to their size. Occupancy levels would therefore be similar to the existing property. Given this, and the lack of existing controls in relation to purchasing parking permits, I am not satisfied that it has been adequately demonstrated that the scheme would result in increased parking pressure, in comparison to existing levels, which would be harmful to highway safety. I therefore do not consider a legal agreement to prevent future occupiers from purchasing parking permits to be necessary.

Given the above, I have not considered the [name] pursuant to Section 106 of the Town and Country Planning Act 1990 (as amended), submitted at appeal stage, further. I have also not considered the parking survey submitted by the appellant further.

Although there would be some conflict with Policy TRC03 of the BLP and Policy T6 and T6.1 of the LP in that the scheme would not ensure car free development, I do not consider that the scheme would result in unacceptable harm to parking provision and highway safety in the area. It would also be broadly in accordance with the provisions of Policy T4 of the LP, which seeks to ensure road safety.

Whilst the scheme may broadly meet sustainable development objectives, these are guiding principles and are not sufficient alone to determine the acceptability of a scheme. They also do not negate the application of relevant adopted planning policy.

The appellant outlines how HMOs are associated with poor standards of accommodation, loss of local character, noise complaints and increased levels of crime, amongst other issues. They go onto explain that as the property is already subdivided and includes a regular housing unit, it should not be expected to retain an HMO use which would be more harmful to amenity than the proposed use. There is however limited substantive evidence before me to demonstrate that these issues exist in this particular case, or that flats would be less harmful to the amenity of neighbouring occupiers. I have afforded this consideration limited weight in favour of the appeal.

[name] may be subject to a significant amount of planning enforcement cases, this does not justify the schemes noncompliance with policy. In any case, I do not know the particular circumstances or reasons for such enforcement cases. The appellant questions the specific wording of an adopted policy in the BLP. This is however not a matter for consideration under this appeal. I have assessed the scheme based on adopted planning policy, and any other material considerations. Reference is made to the London Borough of Camden’s planning policy. The scheme is however not situated in this Council area, and such policy is therefore not relevant to this appeal.

My attention has been drawn to numerous refused applications for the change of use from C3 dwellings to HMO’s. The appellant contends that this proves that in the Council’s view, self-contained flats are more desirable than HMOs. Whilst the refused scheme at [address] (Ref: 25/1101/RCU) does reference increased noise and disturbance, the application sought permission for a 5 person HMO. Additionally, the property is a terraced property situated in a relatively tight knit street. I am therefore not satisfied that it is directly comparable to the scheme before me, nor does it prove that the Council view self-contained flats as more desirable than HMOs.

Several other refused schemes are referenced, with most relating to the change of use from a C3 dwelling to HMOs. A significant portion of these were refused for reasons such as the loss of a family dwelling, harm to the character of an area, or to the living conditions of neighbouring occupiers. However, I am not satisfied that these are directly comparable to the scheme before me, which seeks permission for the change of use from an HMO to flats. I am also not satisfied that they demonstrate that the existing HMO is harmful to living conditions of the occupiers of [address] or indicate that flats are more desirable than HMOs. Each application and appeal must be determined on its own merits.

The Council conclude that the scheme would have no adverse impact on the amenity of neighbouring properties, and any intensification of use would be negligible. The scheme may also meet housing standards, ensure good quality accommodation, is situated in a [name] 1, is not in a Conservation Area and does not feature a listed building or protected trees. These are however considered neutral factors and do not weigh in favour of, nor against the appeal.

The scheme may make efficient use of existing land on a small site and make a small contribution towards the borough’s housing stock and targets, as set out in the LP. It would also contribute towards the governments objections of providing 1.5 million homes. However, it would also result in the loss of an existing HMO. The site is situated within an accessible location with a range of nearby services and facilities. The scheme would ensure some ongoing economic benefits through its construction and lifetime. However, at present the HMO use would similarly have economic benefits such as promoting spending in local towns. The appellant outlines how the scheme would also support communities and enhance the existing building and street scene. Whilst a rear extension is proposed, there is limited evidence before me to demonstrate that this would enhance the building or street scene. The scheme may also promote sustainability, ensure fire safety and meet Building Regulation requirements. Overall, while there are some benefits, these are relatively minor and are afforded limited weight in favour of the appeal. I am not satisfied that the limited weight attributed to these benefits would outweigh the harm identified.

The appellant has queried a number of the Council’s suggested conditions. [name] am dismissing the appeal I have not considered this further.

The proposal would be acceptable with regards to parking provision and highway safety. It would however result in harm in that it would result in the loss of an HMO, and it has not been demonstrated that there is no local need for such accommodation. It would also not reflect the Council’s housing size priorities.

It would therefore conflict with the development plan when considered as a whole and the appeal should be dismissed.