Appeal 6002178

The appeal is dismissed.

I have treated the appeal development as retrospective in nature as the houses in multiple occupancy (HMO) the subject of this appeal were occupied at the time of my site visit and appeared to match those shown on the submitted drawings.

Amended floor plans were submitted with the appeal which the Council has had an opportunity to consider. They differ from those originally considered insofar as they are annotated with the floor area of each bedroom ensuite. The floor layout does not appear to have materially changed and therefore in having regard to established caselaw1, I have proceeded to determine the appeal on the amended floor plans.

The main issues in this appeal are whether the development provides satisfactory living conditions for occupants of the HMOs having particular regard to: (i) internal floor space in the ensuite bedrooms and communal areas; (ii) the outlook from the ground floor kitchen, and (iii) the provision of outdoor amenity space for the HMO on the upper floors.

The drawing showing floor plans of the HMOs includes a scale bar and is annotated to show the floor area of each room in square metres. Having seen the interior of each HMO, I have no evidential basis to dispute the floor areas shown. I am satisfied that the floor space within each bedroom and ensuite exceeds the 1 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin) minimum room size requirements in the [name] for a HMO with or without shared facilities. The floor space within bedrooms also appears to exceed the standards in Policy DM8 of the [site address] Borough Council Development Management Document 2015 (“the DMD”).

For non self-contained accommodation, DMD Policy DM8 requires a communal area containing either a living room, dining room or kitchen diner of a suitable size for all the occupants. The policy does not set a quantitative floor area for those rooms and instead relies upon a qualitative requirement that the layout of this room must enable all the occupants to be able to use the room simultaneously in a comfortable manner.

For a 6 person HMO with shared kitchen facilities but no shared living room, which both HMOs in this appeal are, the [name] set a minimum room size requirement for a shared kitchen of 8.[address] metres, plus additional shared dining space of 6.[address] to a shared kitchen. Although not having the force of policy, the [name] are material considerations given their relevance to the substance of this main issue. Based on those minimum room size requirements, each HMO would require [address] metres of floor space for use as a shared kitchen and dining space.

Both kitchens are fitted out with worktops, cupboards and all necessary appliances for preparing meals. Their floor areas each exceed 8.[address] metres. However, they fall short of the floor space required by the [name] to accommodate shared dining space by approximately 4 and [address] metres respectively.

Even if I were to step away from those floor space standards, I saw at my visit that neither of those kitchens would provide sufficient space for occupants to comfortably eat their meals together, such as at a dining table or similar such seating area. Neither kitchen could reasonably be described as a kitchen diner. Therefore, occupants of the HMOs are most likely to eat meals either on kitchen worktops, assuming other occupants were not using them for food preparation, or alone in their rooms. The latter would require them to carry meals, potentially hot food, between the kitchen and their bedroom.

Given the internal layout of the HMOs, several occupants would carry their meals for some distance to reach their rooms, and the occupant of the second floor bedroom would have a flight of stairs to climb. This would be inconvenient for occupants, particularly as it would occur on a regular basis. Consequently, the absence of shared dining spaces for occupants to comfortably eat meals is a strong indicator that both HMOs in this appeal provide unacceptably cramped living conditions for their occupants.

I saw that the east facing single storey side wall of the ground floor bedroom (number 6) runs alongside and close to the bay window serving the ground floor kitchen. Despite the generous width of its glazing, the closeness of that blank wall has an imposing, overbearing presence in views out of the kitchen window. This results in a harmfully oppressive outlook for its users and together with the lack of shared dining space contributes to cramped living conditions for occupants of the ground floor HMO. Although a narrow oblique angle view towards the rear garden can be obtained from the kitchen window and the sky is visible above that east facing wall, neither are sufficient to relieve the dominance of that wall in views out of the kitchen.

The Essex HMO Amenity Standards do not include kitchens within its list of habitable rooms. However, as DMD Policy DM1 specifically requires outlook to be considered and the occupants of the ground floor HMO would be expected to regularly spend time in the kitchen, their outlook from it is an important material consideration.

DMD Policy DM8 states that dwellings, including flatted schemes, should have usable outdoor amenity space, which could take the form of a balcony or easily accessible semi-private communal amenity space. Although the [name] appear to be silent on outdoor amenity space for HMOs, I give far greater weight to DMD Policy DM8, which has the force of development plan policy. Policy DM8 states that residential schemes with no amenity space will only be acceptable in exceptional circumstances that are fully justified and clearly demonstrated. The HMOs in this appeal are clearly a residential scheme.

The floor plans of the pre-existing building show that each of the 3 flats had access to the sizeable communal garden at the rear of the building. An external staircase provided direct access to the garden from the first floor flat but has been removed to accommodate the extension to the building.

The appellant has made it clear that the garden at the rear of the building is dedicated to the ground floor HMO. No communal outdoor amenity space is provided for the HMO on the upper floors, except for bedroom 4 which has access to a balcony. Whilst the appellant states that it is not unusual for upper floor accommodation to have no access to outdoor amenity space, I have not been provided with examples to show that to be the case.

The garden, which has a usable shape and could accommodate seating, is likely to be a valuable outdoor space for enabling occupants of the ground floor HMO to socialise and relax, particularly as the kitchen provides the only communal space in the building. The garden was being used by some of the occupants at the time of my visit and it is likely to be particularly valuable during good weather. Occupants of the HMO on the upper floors would have no comparable amenity space in which to socialise and relax.

I am informed that there are public spaces on the seafront and Southchurch Park, which are available for those occupants to use. However, neither of those spaces would be so close to the appeal site as to be conveniently located for use by the occupants of the HMO on the upper floors, nor would they offer those occupants a form of semi-private amenity space. In my judgement, the availability of those public spaces does not amount to the exceptional circumstances necessary to justify those occupants having no use of any communal outdoor amenity space at the appeal site. For those reasons, the absence of outdoor amenity space for use by the occupants of the HMO on the upper floors contributes to them being provided with unacceptably poor living conditions.

For the reasons given above, I conclude on those main issues that the appeal development provides unacceptably poor living conditions for the occupants of the HMOs with particular regard to the absence of shared dining space, the oppressive outlook from the ground floor kitchen, and the absence of outdoor amenity space for those of the HMO on the upper floors.

The harm to the living conditions of those occupants is contrary to [name] DM1, DM3 and DM8, insofar as they seek to ensure, amongst others, that occupants are provided with high quality internal and external environments, including usable outdoor amenity space and suitably sized communal areas, and protects amenity having regard to outlook. There is also conflict with Policies CP4 and KP2 of the [site address] Borough Council Core Strategy 2007, insofar as they seek to secure high quality development.

For the same reasons, the development is also contrary to paragraph 135 of the National Planning Policy Framework (“the Framework”) insofar as it requires decisions to ensure that development provides a high standard of amenity for its users.

The evidence before me does not show that the HMOs provide specialist residential accommodation within the meaning given in DMD Policy DM9, and therefore that policy is not determinative to my consideration of the appeal.

Although a license has been granted for 1 Ambleside, which is identified by the appellant as the ground floor HMO, the evidence before me does not demonstrate that the licensing process takes account of living conditions of occupants and amenity considerations in the same way as the planning system does, including the development plan policies referred to above. Therefore, the licensing provisions do not override my assessment of the main issues, and they do not alter the conclusions that I have reached.

The planning committee was entitled to reach a different decision to that recommended by its officers. I am not bound by that recommendation and for the reasons given above I have disagreed with its findings in respect of the main issues in this appeal. In determining this Section 78 appeal it is not for me to make a formal determination on the lawfulness of any part of the development. If the appellant wishes to ascertain whether any part is lawful they may make an application for a formal determination under Section 191 of the Town and Country Planning Act 1990, and that process has its own right of appeal.

The development is harmful to the living conditions of its occupants which brings it into conflict with [name] DM1, DM3 and DM8, and [name] CP4 and KP2, and the development plan as a whole. The conflict with the development plan carries significant weight against the appeal. Whilst those policies do not refer specifically to HMOs, their objectives are relevant to the matters in dispute.

The Council’s housing land supply evidence shows a significant shortfall against the requirement when based on the standard methodology with a 20% buffer. As the appeal scheme provides housing and the Council is unable to demonstrate a 5-year supply of housing land, paragraph 11.d)ii. of the Framework is relevant and the so called ‘tilted balance’ applies. Therefore, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, including specific key policies.

Whilst the appeal development has resulted in a reduction in the number of residential units on the appeal site, it provides more bedrooms and a denser level of occupancy. It is likely to contribute positively to the availability, mix and choice of housing, including accommodation that is likely to be more affordable to single occupants. In accordance with the Framework, it is located within a large settlement where the availability of services and facilities minimise the need for occupants to travel, and where there are good opportunities for travel by sustainable modes.

By replacing a small commercial unit, the development may well have reused some previously developed land for housing. It has made effective use of that land by being more densely occupied. The construction works and the ongoing occupation of the development will continue to bring economic and social benefits to the area. Those benefits broadly accord with the support given by the Framework for housing, particularly in paragraphs 73, 124, 125 and 129.

However, for the reasons given above, the development provides occupants with unacceptably poor living conditions, which are contrary to the objectives of the Framework that require development to provide a high standard of amenity for its users. Therefore, the development is not well-designed and is contrary to Framework paragraph 129 insofar as it requires decisions to recognise the importance of securing well-designed, attractive and healthy places. They are a key aspect of sustainable development and creating high quality places.

In weighing those factors in the balance, the development would continue to deliver some important benefits through providing housing for a sizeable number of occupants. However, it provides those occupants with unacceptably poor quality living conditions that would persist for the lifetime of the development. Therefore, it is not a well-designed development and Framework Paragraph 139 directs that such development should be refused.

Consequently, the adverse impacts of granting the development planning permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, including those specific key policies. Therefore, the Framework’s presumption in favour of sustainable development does not apply in this instance.

I conclude that the development is contrary to the development plan and there are no other material considerations, including the provisions of the Framework, which outweigh this finding. Therefore, for the reasons given above, the development is unacceptable and the appeal should be dismissed.