Appeal 6002787

The appeal is dismissed.

In the banner heading above, I have removed references not relevant to the act of development from the description of development, namely ‘retrospective permission.’

I was able to see on my site visit that the appeal property is in use as a 7-bedroom House in [name] (HMO) and the rear extension has been built. However, the proposed two additional roof lights on the front roof slope have not been installed. Accordingly, I have determined this appeal on the basis that the development has partly been carried out.

The main issues are: • the effect of the development on the residential character of the area, with particular regards to the balance and mix of housing; • whether acceptable living conditions are provided for occupiers of the development, with particular regards to the provision of internal space, natural light, cycle parking and bin storage; and • the effect of the rear dormer on the character and appearance of the area.

[site address] (No 174) is a two-storey mid-terraced property which has accommodation in the roofspace. It is in a predominantly residential area which is characterised by parallel rows of streets of similar terraced properties.

No 174 is within an area covered by an Article 4 Direction, which came into effect on 17 June 2021, and removed permitted development rights for the change of use of a Class C3 (dwellinghouse) to Class C4 (HMO). On the 25 January 2021, the Council issued a Lawful Development Certificate (LDC)1 for the proposed change of use of No 174 to use as an HMO (C4 Use Class for 3-6 persons), as well as a single storey and dormer extension to the rear, and rooflights to the front.

The Council assert that this LDC was not implemented as intended and that the use of the building was a Class C3 (dwellinghouse) prior to being occupied as a 7- bedroom HMO. It falls outside the scope of this appeal to formally determine whether the existing use or development is lawful. However, I shall consider the evidence as to the lawful use in so far only as it is material to this main issue.

The appellant asserts that the C4 HMO use was implemented before the Article 4 Direction took effect in June 2021, and that occupation during the first year consisted of six tenants only. The Council’s evidence is that an HMO licence commenced on 3 June 2021, which permitted occupation by seven persons until 2 June 2026. I appreciate this is not in itself conclusive. However, I have none of the typical evidence I would expect to see before me to demonstrate that the property was occupied otherwise than as the HMO licence suggests. For example, the appellant has not provided copies of assured shorthold tenancy agreements for the period between January and June 2021 to show occupation by six tenants.

Despite being made retrospectively, the ‘current use’ was described as ‘C4 Use Class HMO’ and according to the application form, the work or change of use (for the appeal proposal) started on 25 January 2021. This was the same day the LDC was issued. There is clearly ambiguity in the information provided on the application form, but the appellant’s evidence to the appeal has not sufficiently clarified when the 7-bedroom HMO use commenced if it was not in January 2021. Moreover, although the application form states the work or change of use had not been completed, the appellant does not contend this refers to the change of use.

It is relevant that, when assessing an earlier application2 for a similar proposal, the Council’s Delegated Report referred to the existence of the LDC and accepted that the property was no longer a dwellinghouse, concluding that the HMO use was acceptable in principle. It is also clear from paragraph 18 of the subsequent appeal decision3 that whether No 174 was lawfully in use as a 6-bed HMO was not a matter in dispute between the parties. However, it is unclear what information was before the Council and Inspector at this time, and, to my mind, these statements are not tantamount to confirmation that the property was a lawful 6-person HMO.

For these reasons, on the evidence before me, I cannot be certain that the HMO use was lawfully commenced before the Article 4 Direction came into effect. 1 [name]. 20LP/2865 2 [name]. 23F/3135 3 APP/Z4310/W/24/3347233 Consequently, it has not been demonstrated that a C4 HMO fallback position exists.

Policy H11 of the Liverpool Local Plan 2013-2033 (2022) (LP) aims to ensure that there is balanced housing provision, meeting the needs of families and households of varying sizes. No 174 falls within designated neighbourhood ‘Area B: [address] / [name] / [address] / [address],’ where the concentration of HMOs has reached 22% according to the Council’s latest figures, which are uncontested by the appellant. In such neighbourhoods, LP Policy H11 states that further planning applications for a change of use from C3 to small (C4) or large HMO dwellings will not be supported.

Given my findings above in respect of the lawful use of No 174, the appeal proposal would conflict with LP Policy H11 resulting in a further increase in the concentration of HMOs, to the detriment of the character, balance and mix of housing in this neighbourhood area. It would also conflict with LP Policy H10 2.n) because it has resulted in the unacceptable loss of a dwelling that is suitable in size, design, layout and location for continued use as a family dwellinghouse.

The second-floor front bedroom (Bedroom 7) has a floor area of around 10.4sqm which exceeds the minimum size required by the ‘Houses in [name] and Management’ (2022) (the [name]). Immediately on entering the bedroom, there is an area of floorspace which has a standard ceiling height, but beyond this is a relatively sharply sloping ceiling which falls towards the eaves. More than half of the room has a ceiling height of less than 2.14m, well below the 75% required by the [name].

However, I noted on my site visit that the room fits a large bed, as well as a desk, chest of drawers and space for hanging clothes. It would be necessary to stoop to access some facilities, and in its current position, the eaves significantly restrict the ceiling height over one side of the bed. Nevertheless, the floorspace with a standard ceiling height closest to the landing, whilst relatively narrow, provides sufficient useable space for occupiers to move around and undertake everyday activities comfortably, without being unduly cramped.

LP Policy H10 2.i) and paragraph 17 of ‘Supplementary Planning Guidance Note 7: Conversion of Buildings into Flats and Bedsits’ state that living rooms, kitchens and bedrooms should not be lit solely by rooflights as they do not provide a satisfactory level of amenity. Two additional rooflights are proposed to one side of Bedroom 7’s existing rooflight which would be set within the sloping ceiling. Although not comparable to a standard window, the additional rooflights would still afford Bedroom 7 a reasonable outlook and good levels of natural light. As such, despite some conflict, the appeal proposal would nevertheless meet the aim of LP Policy H10 which is to ensure a good standard of amenity.

Overall, and notwithstanding the restricted ceiling height, Bedroom 7 would be a comfortable, bright and inviting room in which to spend time or study and it therefore provides acceptable living conditions for its occupiers.

LP Policy H10 requires that the configuration of internal space satisfactorily takes into account minimum room sizes. To support the communal nature of HMO occupation, the minimum lounge size is set out in the explanatory text to LP Policy H10 as being 12sqm of useable floorspace which equates to 3sqm per person, assuming a small four-person HMO. For an HMO accommodating more residents, it states that proportionately more communal lounge space should be provided.

The shared open plan lounge, dining area and kitchen is located to the rear of the ground floor. Whilst together it provides a total of 30sqm, the lounge area still measures only around 18sqm, falling well short of the recommended 21sqm for a 7-bedroom HMO. I observed the communal space to be arranged with two sofas which would seat 4 to 5 people, with a dining table which would seat four people. The galley kitchen is narrow with limited useable workspace, but it is of sufficient size to meet the [name]. However, overall, the space feels cramped and confined, and it is difficult to see how it could comfortably accommodate all seven residents of the HMO at any one time. This is despite the single-storey extension to the rear which, whilst improving the layout of furniture, makes limited difference to the size of the internal space, and is at the expense of external amenity space.

I have no persuasive evidence before me, including the comments of the previous [name], to justify a below standard provision. For the reasons above, I find the size of the communal living space would not comfortably meet the day-to-day needs of the occupiers.

Although LP Policy H10 requires that bin storage is provided externally within the curtilage of the site, it was evident from my site visit that in practice refuse is deposited in large, communal bins located on the street. Therefore, in this case, I do not find separate provision for bin storage to be necessary.

Whilst the rear extension has reduced the size of the external amenity space, there would be sufficient room to provide vertical wall-mounted cycle racks, or a slimline weatherproof locker to accommodate 4 cycles. Indeed, I observed that cycles were stored in the yard of the neighbouring property which is comparable in size. The details and provision of such cycle storage could be secured by a planning condition. Accordingly, there would be no conflict with LP Policy TP5 which requires development to provide sufficient, secure cycle parking facilities.

To conclude on this main issue, whilst I have found Bedroom 7, bin and cycle storage to be acceptable, the proposal would not provide acceptable living conditions for future occupiers with regards to the internal space provided within the communal living area. Consequently, there would be conflict with LP Policy H10 which requires internal space to satisfactorily take into account minimum room sizes in order to support the communal nature of HMO occupation.

The Council alleges that the existing dormer extension to the rear of No 174 does not benefit from planning permission and is visually incongruous. The appellant’s evidence includes an image from [name] dated April 2021 which appears to show a dormer extending across the rear roofslope of No 172 to [address]. However, whether this existing development is lawful falls outside the scope of this appeal and it is open to the appellant to make an application under section 191 of the Act to ascertain this. [name] am dismissing the appeal on other grounds, it is not necessary to consider this matter further.

The proposal would increase the level of residential accommodation provided at No 174, aligning with the National Planning Policy Framework where it requires that decisions promote an effective use of land and buildings. It is also a location where amenities and public transport are within walking distance. However, the weight I afford to these benefits would not be sufficient to outweigh the harm I have identified to the residential character of the area, or from the provision of unsatisfactory living conditions for occupiers of the HMO.

An Inspector, on their own initiative, may make an award of costs if they consider that a party has behaved unreasonably resulting in unnecessary expense. The appellant has not made an application for an award of costs, but I have been invited to consider whether the approach taken in this case accords with the expectation that planning decisions be evidence-based and proportionate. However, given my findings in respect of the adequacy of evidence in respect of the first main issue, I find no reason to consider an award of costs further.

The proposal conflicts with the development plan and material considerations do not indicate that the appeal should be decided other than in accordance with it. For the reasons given above, I conclude that the appeal should be dismissed.