Appeal 6002364

The appeal is dismissed.

On the basis that the proposed use has been taking place on site since 2024, section 73A of the 1990 Town and Country Planning Act applies. I have therefore dealt with the appeal on this basis.

The Council’s Reasons for [name] 2 and 3 refer to policy T27 of the Birmingham Development Plan [2017] (BDP). However, in consideration of the evidence there is no policy T27. It is clear to me that this is a typo where policy TP27 (sustainable communities) was meant to be referred to. I have therefore considered the proposal against policy TP27 instead, and I am satisfied that no party would be prejudiced by my doing so.

The appellant suggests that the proposal is for supported housing in a quasi-institutional use. It is suggested that the proposal could be considered as a C3(b) use (up to six people living together as a single household who are receiving care) rather than a House in [name] (HMO) use, which is regarded as sui generis use (a class by itself). However, a C3(b) use is only for small groups of people living together and receiving care. This is clearly exceeded by this proposal for 14 and I am unconvinced, in reading the evidence, that all residents would receive the care envisaged by the use class. Furthermore, in considering a condition to require the use to be operated as a C3(b) for ‘supported housing’ would alter the description of development, substantially limit the number of occupiers and evolve the scheme. This change would also fail to give interested parties a fair opportunity to consider the altered scheme, causing prejudice. Accordingly, I have considered the appeal on the terms originally set out in the description for a standard HMO.

The main issues are: • The implications of the proposal for the achievement of balanced communities, with particular reference to its potential effect upon the character of the area, • The effect of the proposal on the living conditions of adjacent occupiers with particular regard to noise and disturbance, • Whether the proposed development would provide suitable living conditions for future occupiers with respect to room sizes, and • Whether the proposal would result in an adverse effect on pedestrian and highway safety due to on-site parking provision.

The appeal site contains a large, 2-storey detached property that is located on a main arterial route into the city, surrounded by many large, detached dwellings. The appeal property itself was formerly a residential care home. It contains 14 bedrooms in addition to shared living space. The Council’s records indicate the presence of 9 further HMOs within a 100m of the site, representing that 10.11% of properties within the area are HMOs.

Policy DM11 of the Development Management in Birmingham Development Plan Document [2021] (DPD) provides a policy approach for the consideration of HMOs. This states that where there is an over-concentration, where more than 10% of properties within a 100m radius of the site are HMOs, planning consent should not be granted. Policy DM11’s supporting text identifies that over concentrations of certain types of accommodation can have negative impacts on local communities, including on residential character, appearance and the amenity of an area, resulting from excessive noise and disturbance and increased parking pressures.

Furthermore, BDP TP27 seeks to achieve sustainable neighbourhoods by offering and maintaining a wide choice of housing sizes, types and tenures and a strong sense of place. The concentration of HMOs in particular areas would result in the provision of a substantial transient population which is less likely to contribute to local communities. Furthermore, an overconcentration of such uses would conflict with the National Planning Policy Framework which seeks to create and maintain balanced communities.

The proposal would not result in the loss of a family dwelling. Nonetheless, the building’s lawful use, as a care home with 11 residents, is a different type of residential accommodation that would be lost as a result of the scheme. Although there is no policy objection to such a loss, the former and lawful use of the building does not provide an indication that the building would be suitable to be used as an HMO. Whilst the proposal would individually provide a type of housing that would contribute to a mix of accommodation types in the area, this benefit would be outweighed by the proliferation of existing HMOs in the area.

DPD Policy DM11 explains that where the 10% threshold is already breached planning permission could still be granted in exceptional circumstances where the HMO would not change the character of the area. Exceptional circumstances are defined by paragraph 4.25, this describes a situation where the number of HMOs within an area has altered the character to an extent that further HMOs would not have a further effect. This therefore refers to areas that are well in excess of the 10% threshold, which is not the case in the appeal site’s area. Accordingly, the proposed use does not meet the exceptional circumstances described by paragraph 4.25.

Despite the previous use of the site as a care home, the proposal would detrimentally alter the character of the site through the proposed intensity of the use, effectively operating as 14 different homes. The scheme would therefore promote community imbalance through further intensifying the existing use of the appeal site as an HMO in a wider area that is already characterised by many HMOs.

The proposal would not support balanced communities and would cause harm to the character of the area in conflict with [name] PG3 and TP27 and DPD policy DM11, whose requirements have been set out above.

The appeal site’s immediate surroundings are generally typified by large dwellinghouses. [name] have already noted, from the evidence before me, Nos 827 and 829 either side of the site are detached properties in residential use. [name] 829 appears to have been subdivided into two dwellings, both neighbouring dwellings are large and able to accommodate families. As set out in DPD policy DM11, host communities can feel that their amenity and quality of life is impaired from high levels of HMO concentrations for a number of reasons, including noise and disturbance. The size of the proposal, containing 14 bedspaces, would represent a large HMO.

The appellant explains that the residents are under a managed support scheme. However, the degree of oversight and day-to-day management, are not explained beyond “periodic support worker visits” and during my visit the building appeared to offer largely independent living. The occupiers are screened and referred by the local authority, but the appellant does not explain the type of individuals that are ‘screened out’. Furthermore, the previous use as a care home would not have operated in a similar manner as the HMO, with on-site staff providing regular and frequent managed care to the 11 residents. For these reasons, I do not concur that the level of intensity of use and associated noise and disturbance would be patently comparable to the former care home.

The use would effectively create 14 separate households within the building with individuals living separate lives with the potential for comings and goings throughout the day and night. Despite the building including a communal lounge, the HMO has the potential to create significant noise levels and cause disturbance to nearby residents due to the unrestricted comings and goings of occupants. I also note that the rear garden is well attended and provides a pleasant area for occupiers to enjoy. Although this would be of benefit to occupiers it would create a potential further environment where excessive use at anti-social times would cause substantial harm to the living conditions of neighbouring occupiers. A management plan could help to arrest some concerns, but such a plan is not within the submission, and its scope and terms would need to be understood before concluding on the effectiveness of such management.

Furthermore, despite the appellant’s assertion, the council explains that the facility has generated complaints, demonstrating that the residential character has been harmed through the use. Moreover, the potential for noise and disturbance to occur in the vicinity of the site, as a result of the appeal property and other nearby properties being occupied as HMOs, would be exacerbated by the proposal. Therefore, even if only to a moderate degree, this would compound the harm I have already identified to neighbour’s living

Consequently, the proposal has not sufficiently demonstrated that it could be operated in a manner that would prevent harm to the living conditions of neighbouring residential occupiers due to anticipated noise and disturbance. Accordingly, the proposal would conflict with BDP policies PG3 and TP27, DPD policies DM2 and DM11 and the [name] (2022). The requirements of these include to ensure all development would not result in unacceptable adverse impacts on the amenity of neighbours with respect to noise.

The layout of the proposed use would not alter the existing configuration of rooms. The building includes three floors, with bedrooms provided through out each having access to nearby kitchen areas and bathrooms. However, bedroom 3 (identified as bedroom 2 on site) is a small room that fails the Council’s guidelines, being below 7.5sqm, as sought by DPD policy DM11.

During my visit I saw that this room was furnished with a single bed, bedside cabinet and wardrobe, and had a generous window. Whilst it could have also accommodated a desk and/or chest of drawers, the remaining space would be congested providing poor circulation for an occupier. As a result, this room would be restricted and would thereby provide a poor-quality space for a future occupier.

The appellant states that the room would meet the statutory minimum size for a single person HMO bedroom as defined in national regulations. However, meeting separate legislative requirements is of limited weight in considering the proposal against planning policies. Also, the convenience of local communal space in the building is noted, but this does not outweigh the identified deficiency.

The appellant has suggested that if the room is deemed to be too small, it could be excluded as a bedroom, from the proposal. This would readily address the concern, and this matter could be secured by condition.

As such, the proposal, with a condition to prevent the use of bedroom 3 for sleeping, would create suitable living conditions for future occupiers in compliance with BDP policies PG3 and TP27 and DPD policies DM2 and DM11, with respect to effect on the living conditions of future occupiers. These seek, among other matters, for development to prevent an adverse effect on occupier’s amenity and provide high quality accommodation with adequate living space.

The appeal site includes parking for two vehicles. [address] is a four-lane carriageway with single yellow lines and parking restrictions imposed, preventing long term on-street parking. It was apparent from my site inspection that parking opportunities are restricted upon [address]. The site is within ‘[name], defined as beyond the edge of the City Centre by the Council’s Parking Standards SPD [2021]. The parking standards for this zone require 0.5 spaces per bedroom for HMOs, with alternative levels considered on a case-by-case basis. This would generate a demand for 7 parking spaces.

The SPD explains that the parking standards should allow for some flexibility for all uses within zone C and that low parking provision will be supported where it can be demonstrated that it would have a minimal impact on local on-road parking. It also states that any departure from the standards should be fully justified, in most cases include a [name], and consider local parking pressure, trip generation of the scheme and details of how parking would be managed.

The appellant indicates that occupants are supported housing tenants, typically on low income and some with medical conditions that prevent them from driving. It is therefore recognised that not all occupiers would own or have access to a car. Nonetheless, whilst the appellant suggests the actual parking generated is near zero, I noted two cars parked on site during my visit. Demand for parking could readily be greater at evenings and weekends, and greater still is visitors drive to the facility. Furthermore, parking demand could change over time, with less or greater demand occurring depending on induvial occupier’s circumstances. Therefore, whilst the Council has not identified local parking pressures, the appellant has also not demonstrated how the use would operate without causing off-site parking nuisance. Furthermore, whilst the appellant explains that the former care home generated equal or greater parking demand this assertion is not supported by a [name].

The site is adjacent to a main road well served by public transport providing easy access to goods and services and the city centre. It is therefore in a highly accessible location. However, the appellant’s assurances that off-site parking would not occur is unsupported by technical analysis. The site has limited on-plot parking and there are limited local on-street parking options. Furthermore, whilst only anecdotal, concerns have been raised by interested parties that parking from the HMO has resulted in parking on adjacent private driveways. Therefore, whilst the site is located in a sustainable location where reduced parking requirements could be supported, the appellant has not demonstrated that the proposal could accommodate the parking demand it is likely to create.

Consequently, I find that the proposal would be likely to generate additional demand for car parking that cannot be readily accommodated on site. Without analysis I cannot be satisfied that anticipated overspill parking from the proposed HMO would not cause harm to neighbouring living conditions or highway safety.

Accordingly, the proposal has failed to demonstrate that it would prevent an adverse effect on pedestrian and highway safety due to the limited on-site parking provision causing overspill parking in local areas. As such, the proposal would conflict with BDP policies PG3 and TP44, with respect to parking and highway issues. These seek, inter alia, for development to manage travel demand through a range of measures including the availability of parking and ensuring that the location of new development supports the delivery of sustainable transport.

The proposed use would provide supported accommodation for adults who were either homeless or at risk of homelessness. The appellant explains that many occupiers have support needs that range from mental health challenges to recovery from domestic abuse or substance misuse. It is stated that if the scheme is declined, and the use forced to cease, 14 vulnerable people would be displaced. This is a matter that weighs in favour of the proposal and which I have attributed weight, albeit moderate as planning permission should have been obtained before the use commenced.

The appellant asserts that the existing residents of the building include residents with protected characteristics under the equality Act, but provided details are extremely limited. Nonetheless, in my assessment of the effect of the proposed development on the wellbeing of users of the facility, I have had due regard to the Public Sector Equality Duty (PSED) contained in Section 149 of the Equality Act 2010. This sets out the need to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between people who share a protected characteristic and people who do not share it.

However, whilst the proposed use would provide supported living it seems that whether occupants have protected characteristics would be incidental rather than a key requirement of people being housed here. As such, I am unconvinced the duty exists. Nonetheless, I have considered the benefit of the facility for vulnerable people which weighs in favour of the proposal.

The proposal is supported by the Council’s Housing Department, who the appellant asserts, actively encouraged the placement of people at the property.

The proposal would provide a social benefit in providing supported housing. Nonetheless, this benefit is tapered by the high concentration of similar such types of accommodation already available in the area providing a sufficient range of this type of housing.

The site is within the Sely Park Conservation Area. This is a mature suburb. It includes several high-quality historic buildings in the three principal character areas, including the landmark church of St. Stephen. It is deemed to be an essential part of [site address] ’s identity and heritage and is special to Birmingham as a whole. It’s significance therefore derives from its architectural and historic interest. The proposed development would result in harm to the residential character of the area, but would this would not affect the area to an extent that the proposal would fail to preserve the character and appearance of the conservation area.

The proposal conflicts with the development plan and the material considerations do not outweigh the conflict found with the development plan. According, material considerations do not indicate that the appeal should be decided other than in accordance with it. Accordingly, the appeal is dismissed.