Appeal 6000967

The appeal is dismissed.

An application for costs was made by [name] against Medway Council. This application is the subject of a separate decision.

On 4 July 2025 the Council issued a certificate of lawful proposed development for the use of the building as a Class C4 House in [name] (HMO) and a loft conversion to allow additional accommodation within the roof space (ref MC/25/0955). The HMO could be occupied by up to 6 individuals. The appellant presents this as a ‘fallback’ position. At the time of my site visit the building had been fitted out as a 6-bedroom HMO and the rear ground floor room labelled ‘entertainment room’ on the ‘as existing’ drawings was not occupied as a bedroom.

The appellant submits that the conversion of the ‘entertainment room’ to bedroom 7 would not constitute development under the terms of Section 55 of the Town and Country Planning Act 1990 (as amended) (TCPA 1990). They state that this is because the works are internal and the change of use would only occur if the room was occupied, resulting in 7 people living in the building. It is not for me, under a Section 78 appeal to determine the lawfulness of a proposal. It is open to the appellant to apply to the Council for a separate determination under sections 191/192 of the Act regardless of the outcome of the appeal.

The original planning application and this appeal relate to a sui-generis large HMO for 7 people according to the layout specified on the proposed drawings. The description of development on the original planning application form described a change of use from Class C3/C4 dwellinghouse to a 7-bedroom HMO and I proceed to determine the appeal on this basis.

On 16 December 2025, the Government published a consultation on proposed reforms to the National Planning Policy Framework (the Framework). Whilst broad changes to the structure of the Framework are proposed as part of this consultation, these proposals could be subject to further change and can only be given very limited weight at this stage. It has therefore not been necessary to consult the parties on the changes, and in reaching my decision, I have had regard to the Framework published in December 2024.

The main issues are the effect of the appeal proposal on: • the living conditions of future occupiers; and, • the integrity of the European designated sites.

The Medway Local Plan 2003 (Local Plan) does not contain specific space standards for HMOs. In evidence, reference has been made to the Council’s Interim Housing Design Guidance 2011 (interim guidance), which contains internal space standards for housing but not specifically for HMOs. In their reason for refusal the Council refer to the requirements of the [name] – [name] 2015 (NDSS). The Written Ministerial Statement of 25 March 2015, in setting out how local planning authorities should apply the NDSS, states that decision takers should only require compliance with the national technical standard where there is a relevant local plan policy. I do not regard the interim guidance as having the same status as an adopted local plan policy. Consequently, I cannot conclude that the NDSS has the status of an adopted local plan policy and this limits the weight I attribute to it.

The appellant has drawn my attention to the national space standard for HMOs under the Housing Act 2004. I have been referred to a standard of 6.[address] metres for HMO rooms, drawn from the HMO and [name]; Guidance for Local Housing Authorities (updated 9 October 2019). Whilst these standards are a consideration, they are not adopted planning policy.

Although it was not referenced in the Council’s reason for refusal, I have also been referred to draft Local Plan Policy T8 which requires HMOs to comply with the NDSS, providing communal space of at least one reception room and kitchen or equivalent space. However, I attach limited weight to this policy given the reasonably early stage of plan preparation and it is unclear whether there are unresolved objections to the policy.

Additionally, Medway Local Plan 2003 (Local Plan) policy BNE2 requires that all development should secure the amenities of its future occupants, with regard to amongst other things, privacy, daylight and sunlight.

Given that there are no adopted local plan policies which specifically relate to space standards for HMOs, the adequacy of the internal room sizes and configuration is a matter of planning judgement. In this regard, the NDSS and the standards referred to by the appellant are material considerations.

Bedrooms 2 and 5 at 1st and 2nd floors of the rear outrigger extension are small, being labelled on the drawings as 6.6 and 7.[address] metres respectively. They would fall short of the NDSS, but would be acceptable in relation to the HMO standards quoted by the appellant. They each have an open outlook to the rear and in my judgement would have sufficient daylight and sunlight. Given their regular shape, they can accommodate a bed, small desk and wardrobe. There would however be minimal space left over for day-to-day activities such as drying washing, or for any additional storage.

The communal kitchen area is equipped with kitchen appliances and storage cupboards. There is a breakfast bar which would accommodate seating for a few, but not all, of the proposed 7 occupants. The remainder of the kitchen area outside bedroom 7 is occupied by fridge/freezers and washing machines/tumble driers. There would be no other communal seating or living space. The size and configuration of the communal areas in my judgement would not sufficiently mitigate the cramped nature of rooms 2 and 5 since there would be no other internal communal space in addition to the kitchen.

I have not been provided with any quantitative evidence regarding internal daylight levels. In relation to room 7, given the orientation of the window/door facing the boundary fence, it would be reasonable to conclude that it would not be adequately daylit. On the basis of the evidence before me I do not consider that the combination of low daylight levels and restricted outlook towards the boundary fence would provide acceptable living conditions for a future occupant. Given that this would be the occupant’s primary living space, acceptable outlook and daylight are necessary.

The certificate of lawfulness as a Class C4 HMO is a material consideration. However, the basis on which a certificate of lawful development is considered relates solely to the lawfulness of the use pursuant to Section 192 of the TCPA 1990, and does not allow for the application of planning policy or other material considerations. The reconfiguration of the layout under this appeal to allow 7 HMO rooms would significantly reduce the communal space available and would increase the reliance of the occupants of rooms 2 and 5 in particular on the very limited private living space these rooms offer.

To conclude, I find the proposed arrangement of the communal kitchen/dining area would be cramped for the 7 occupiers, bedroom 7 to the rear ground floor would not offer adequate outlook or daylight, and the size of rooms 2 and 5 would also be inadequate as there would be insufficient communal kitchen/living space to mitigate the cramped layout of the rooms.

Taken together, the above factors would cause harm to the living conditions of future occupiers. This brings the appeal proposal into conflict with Local Plan Policy BNE2, insofar as it requires new development to secure the amenities of its future occupants, with regard to matters including daylight. It would also be contrary to Framework paragraph 135 insofar as it states that planning decisions should create places with a high standard of amenity for existing and future users.

Although referred to in the Council’s reasons for refusal, I have not identified a specific conflict with Local Plan Policy H7 in terms of the matters in dispute, since it makes no reference to space standards or quality of accommodation.

The appeal site falls within the Zone of Influence of the European designated sites of the Thames, Medway and Swale Special Protection Area (SPA) and Ramsar site. These sites are designated due to their international importance for their over-wintering bird populations which vary across the sites. The primary threat to the over-wintering birds is through disturbance due to the recreational use of the protected areas.

There is a risk that the proposed development could have a likely significant effect on the SPA and Ramsar site, as it would be likely to exacerbate existing recreational pressures on these sites either alone or in combination with other plans or projects. I am therefore required to carry out an appropriate assessment pursuant to the Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations). This responsibility falls to me as the competent authority in the context of this appeal.

I must consider whether measures could be put in place to avoid or mitigate the impacts of increased recreation pressure arising from the proposed development. The Council and its partners have produced a [name] and Monitoring (SAMM) plan known as [name] to address the in-combination recreational impacts on each of these coastal SPA/Ramsar sites. They comprise measures including ongoing survey and monitoring work, along with signage and education to increase awareness and behavioural change, to be funded by new development sites in perpetuity. A tariff-based contribution scheme dependant on the number and size of residential development (including HMOs) has been agreed in relation to each designated site. The Council indicate that the proposal would attract a SAMM tariff of £337.49 per dwelling.

There is no evidence before me that a SAMM contribution has already been paid. I note the willingness of the appellant to provide the appropriate contribution. However, there is no completed planning obligation before me that would secure any mitigation in respect of the SAMM.

In the absence of appropriate mitigation, the scheme would have likely significant effects on the integrity of the SPA and Ramsar sites. The appellant has not demonstrated there are no alternative solutions to providing unmitigated HMO accommodation at the site. Imperative reasons of overriding public interest do not exist and there are no other considerations that clearly outweigh the harm to the designated sites. Given a competent authority may agree to a plan or project, only after having ascertained that it will not adversely affect the integrity of Habitats sites, Regulation 63(5) of the Regulations precludes the development from proceeding.

In conclusion on this main issue therefore, the appeal scheme would have likely significant effects upon the SPA and Ramsar as designated habitats sites. It would therefore conflict with Policies BNE35 and S6 of the Local Plan insofar as they require long term protection for international and national nature conservation sites and require the use of planning obligations to secure mitigation measures.

My attention has been drawn to an allowed appeal for a large HMO in the London Borough of Sutton (reference APP/P5870/W/23/3331307) and one in Maidstone, Kent (reference APP/U2235/W/23/3315982). [name] cannot make a direct comparison since I have limited information before me of the layout or precise circumstances of these schemes, there is a commonality with the appeal scheme in that there was a dispute over the adequacy of living conditions. The appeals were however determined under different development plans and issues including quality of accommodation are highly individual to each site. I have necessarily determined the appeal on its own merits.

In addition to the main issues identified above, I note interested parties’ concerns relating to other planning and non-planning matters including parking availability, noise and disturbance to nearby residents and existing covenants on the appeal property. [name] am dismissing the appeal on the main issues for the reasons given above, I have not pursued these matters further.

The 7 HMO rooms would offer an affordable form of accommodation and would be an efficient use of the land. The location of the appeal site would provide good access to facilities and services. There would also be some socio-economic benefits arising from new occupiers using local shops and services. These benefits attract moderate weight in the overall planning balance.

However, the harm I have identified to the living conditions of the future occupiers and the potential of the scheme to adversely affect the integrity of the European designated sites attracts significant weight and outweighs the identified benefits. The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it.

For the reasons given above the appeal should be dismissed.