Appeal 6001915

The appeal is allowed and planning permission is granted for change of use of C4 HMO to a sui generis [name] for 8 people at [site address] in accordance with the terms of the application, [name]/25/1571, subject to the following conditions:

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with drawings named: Location Plan (provided on the Existing plans and elevations drawing) and Proposed plans and elevations.

Neither of the two additional bedrooms hereby permitted shall be occupied until the secure private cycle parking provision detailed on the Site plan of the Proposed plans and elevations drawing has been provided. The secure private cycle parking shall be retained thereafter for the lifetime of the development.

Neither of the two additional bedrooms hereby permitted shall be occupied until the approved refuse arrangements shown on the Site plan of the Proposed plans and elevations drawing are in place. All approved refuse storage and collection arrangements shall be retained thereafter for the lifetime of the development.

The site shall be occupied by a maximum of eight occupants.

The Council has submitted the Medway Local Plan 2041 (the emerging Local Plan) for examination. I am uncertain whether the policies contained within the emerging Local Plan, referred to by the Council, are subject to outstanding objections or whether they might change before formal adoption. Consequently, I attach only very limited weight to the emerging policies in my consideration of the appeal.

The main issues are: • the effect of the proposal on the character of the area and the living conditions of neighbouring occupiers with regard to noise and disturbance; and • whether a suitable standard of accommodation would be provided for future occupants with regard to internal communal space.

Policy H7 of the Medway Local Plan Adopted May 2003 (LP) states that dwellings intended for multiple occupation should be in an area that is predominantly mixed-use or commercial in character and where the property is not detached, that relevant adjoining or nearby properties are in multiple occupation or non-residential use. In addition, where a change of use is proposed, the policy requires that the property should be too large to be occupied by a single household.

[site address] comprises a two storey property which forms a House in [name] (HMO), which can accommodate six occupants. It is a semi-detached property which abuts a row of terraced dwellings. The majority of properties along [address] appear to be occupied as single dwellings.

In the wider area there are some commercial and community uses that sit alongside residential uses. However, whilst there is a single shop unit at one end of [address] and a church and pre-school at the other, the rest of the buildings along the road appeared to be detached, semi-detached and terraced properties in residential use. Given the prevailing residential use along the majority of [address], I do not find that the site can be described as being within an area that is of a predominantly mixed-use or commercial character.

During my site visit, it did not appear that any of the neighbouring or nearby properties in proximity of the site are HMOs or in a non-residential use. Neither of the parties assert otherwise. [name] am referred to one other existing HMO on [address], and other HMOs and flats located elsewhere in the surrounding area, given the distance from the site, I do not consider that these are adjoining or nearby the site, in the context of the policy requirement. I therefore find that in these respects the proposal would conflict with the provisions of LP Policy H7.

The existing building does provide fairly extensive accommodation, however, there is no evidence before me that it would not be suitable as a single dwelling for a larger family. However, the site is already in use as an HMO. There is no compelling evidence before me, that the reversion to a single family dwelling would be a likely outcome if the appeal were dismissed. The conflict with the policy in this respect is therefore significantly tempered.

A further requirement of Policy H7 is that the property is located where increased traffic and activity would not be detrimental to local amenity. The Council do not refer to increased traffic as a particular concern but do raise the effect of the proposal on the living conditions of neighbouring occupants in terms of noise and disturbance, although limited detail is provided.

Whilst concerns are raised by interested parties about noise, the Council has not provided any evidence that formal complaints have been received regarding the current HMO use nor any substantive information that suggests the proposal would result in excessive noise and disturbance or anti-social behaviour.

The increase in occupation from six to eight occupants would inevitably result in a more intensive use of No 33 and some additional activity, such as the general comings and goings of the occupiers, their visitors and deliveries. However, although occupiers of HMOs can often lead largely independent lives, with different routines and schedules to one another, it is unlikely that two additional occupants would result in a markedly different level of activity.

Moreover, given No 33 is already an HMO, any differing patterns of activity associated with such a use, as compared to a family dwelling, will already be an established feature in this part of the road. The appellant has not raised concerns about the Council’s suggested condition, restricting the occupation of the site to eight occupants.

I therefore find that there is little evidence before me which demonstrates how the increase from six to eight occupants within an existing HMO would result in any significant or discernible change to the character of the site or the surrounding area or how it would result in unacceptable noise and disturbance.

I therefore do not find that the proposal would result in unacceptable harm to the character of the area or the living conditions of neighbouring occupants in terms of noise and disturbance. In this case, there are material considerations that would outweigh any conflict with the criteria set out under LP Policy H7 regarding the location of properties in multiple occupation. I also find that the proposal would accord with Policies H7 and BNE2 of the LP, with regards to the need to protect the amenities of nearby and adjacent occupiers.

Interested parties and the Council state that the internal communal space would not be sufficient for eight occupants, given its size and the fact the kitchen, dining and living area are provided as one shared space rather than as separate rooms. However, I am not directed to any adopted policies or guidance that sets out a required size for such internal communal space nor how it should be laid out.

Whilst the single communal space provides the kitchen, dining and living space, I witnessed a kitchen area of sufficient size along with space to sit on a sofa or at a counter. Whilst the side door out to the garden area is located off the communal space, it is to one end of the space, away from the kitchen area, and I do not find that the layout impedes the use of the living space.

I am referred to a decision at [address] in the same Council area, where the Inspector identified that it is unlikely that a communal space would be used by all residents at the same time. I concur with this observation and find it likely that the occupants of the HMO would not operate in the same way as one single household, meaning that not all occupants would be using the communal space at the same time.

As such, taking the type and nature of the accommodation proposed into account, I find that there is no reason to conclude that the internal communal space would be insufficient in this case.

I have been referred to Policy T8 set out in the emerging Local Plan which the Council assert would require separate kitchen and reception spaces in HMOs. However, I have not been informed when the examination will take place, or whether there are unresolved objections in relation to this particular policy. Consequently, this emerging policy may be subject to change and as such, I find that the weight that can be attributed to any conflict with it is negligible. The Council has not referred to any adopted policies in the development plan that the proposal would be contrary to in relation to this main issue.

Given my findings above, I find that the proposal would comply with paragraph 135 of the National Planning Policy Framework (the Framework), which seeks, amongst other things that developments provide a high standard of amenity for existing and future users.

Interested parties have raised concerns in relation to highway safety and on-street parking provision. Nonetheless, the Council do not consider that the scheme would result in a severe highway impact and there is no compelling evidence before me to indicate that I should come to a different view. I note the concerns about adding to on-street parking stress and that [address] is within a controlled parking zone.

However, whilst only a snapshot in time, during my site visit, I witnessed a number of on-street spaces along [address] and in the surrounding area. I also found the site to be in a highly accessible location. Provision for cycle storage would further encourage sustainable modes of travel. Given this, the two additional occupants of the HMO would have a range of transport modes available to them, and they would not necessarily have to rely on a car for day to day requirements. This would likely lessen reliance on the private car. Therefore, without compelling evidence regarding on-street parking stress and due to the scale and type of proposal, I do not consider that a planning condition requiring a parking management plan would be reasonable or necessary in this case.

Whilst the need for builders to park outside the property during works may have an effect on parking in the area, given the temporary nature and the scale of the scheme, it would not result in unacceptable harm that would warrant the refusal of planning permission.

The Council considers that the proposed bedrooms would provide an adequate size and standard of bedroom accommodation. Based on the evidence before me, I concur with the Council on this matter. There is no compelling evidence before me that the proposal would result in unacceptable strain on existing infrastructure.

Whilst an interested party raises concerns about the overarching housing strategy, the mix of properties coming forward, the number of HMOs in the wider area and the uptake rate of some new developments, the Council has not raised these matters as a reason for refusal.

The maintenance of the building and the arrangements for occupiers of the property receiving deliveries are matters that would need to be managed outside of the planning system. The effect on property values and the rental potential of the scheme are not material planning considerations.

The appeal site is located in the zone of influence of the [name] which includes the [name] and Marshes, [name] and Marshes and Swale Special Protection Areas and Ramsar sites which are European sites designated because of their importance for waders and waterfowl species. The Conservation of Habitat and Species Regulations 2017 requires that competent authorities consider whether a proposed development may have a significant effect on the conservation objectives of such sites, either alone or in combination with other plans and projects. The increased occupation of the site would be likely to result in additional demand for recreation in the local area, and such activity within the European sites could cause disturbance to the bird population.

The Council has confirmed that the [name] and [name] (SAMMS) is adopted by the Council which sets out a tariff based approach to fund measures to mitigate the potential adverse effects on the qualifying features of the European sites. Natural England have endorsed this approach.

It has been confirmed by both parties that the appellant has made a payment upfront in this regard. The Council is satisfied that appropriate mitigation has been secured. There is no evidence before me that a responsible and accountable public body would not spend the money as intended. Any potential adverse effects would therefore be mitigated and harmful effects on the European sites would be avoided. Following my appropriate assessment, I am satisfied that the proposal would not adversely affect the integrity of the European sites.

I have considered the Council’s suggested conditions against the Framework and the Planning Practice Guidance. I have amended them where necessary to ensure they meet the tests set out in the Framework.

In addition to the standard time limit condition, I have imposed a condition setting out the approved plans, in the interests of clarity. I have imposed conditions requiring that the cycle parking and refuse arrangements are provided prior to the occupation of the two new bedrooms permitted. I have also included a condition setting out the maximum number of occupants in the interests of certainty and the amenity of the surrounding area.

For the reasons given above, the proposed development would conflict with the development plan but material considerations indicate that a decision should be made other than in accordance with it. The appeal is therefore allowed.