Appeal 6002859

The appeal is dismissed.

The description of development above has been taken from the application form, but I have removed reference to “retrospective planning application” as this does not relate to the act of development. The development has commenced as the dwelling is being occupied as a house in multiple occupation (HMO). I have determined the appeal on this basis.

The main issues are: • the effect of the development on the supply of family housing; • the effect of the development on living conditions for occupiers of the development, having regard to the provision of external amenity space; • the effect of the development on the living conditions of occupiers of neighbouring residential properties and the character of the area, having particular regard to noise and disturbance; • the effect of the development on highway safety with regard to parking; and • the effect of the Public Sector Equality Duty (PSED) and human rights with regard to the personal circumstances of the occupiers.

The appeal property is an extended semi-detached dwelling in use as a nine-bedroom HMO. The appellant argues it is not a typical HMO because it currently operates as refuge accommodation, and I have no reason to doubt the appellant’s evidence of significant need for this provision and its alignment with wider Council objectives, including the [name]. On that basis, the appellant refers to DMB policy DM12, which supports specialist accommodation in defined circumstances. However, the application before me is for a nine-bedroom HMO and is therefore most appropriately considered against policy DM10. In any event, both policies indicate that development should not result in the loss of an existing use that makes an important contribution to the Council’s objectives, with particular reference to the shortage of larger family homes.

The National Planning Policy Framework (the Framework) indicates that it is important that the needs of groups with specific housing requirements are addressed, and there is an appropriate mix of housing types for the local community. The Council’s policies seek to do this by amongst other things seeking to protect family housing while also making provision for HMOs and specialist accommodation in appropriate circumstances and locations.

The Supplementary Planning Document - Houses in [name] ([name]) recognises demand for HMOs from various groups, but notes that the Council’s Housing Needs Assessment identifies ongoing high demand for family housing (two, three or more bedrooms), linked to Birmingham’s higher proportion of households with dependent children. Accordingly, it requires proposals to convert a C3 dwelling to demonstrate a lack of demand for continued single-family use, supported by verified marketing for at least six months. No such marketing evidence, or other substantiation of a lack of demand for use as a family home, is before me.

Notwithstanding that the appeal proposal is currently operating as a form of refuge accommodation; the loss of a family home would result in the loss of a use that makes an important contribution to Council objectives including maintaining the stock of larger family homes. Its loss has not been clearly justified, and consequently, I conclude that the development does have an adverse effect on the supply of family housing.

Therefore, the appeal proposal is in conflict with polices TP30 and TP35 of the BDP, which state proposals should seek to deliver a range of dwellings to meet local needs while setting out the sources of evidence that should be taken into account to inform proposals, and indicate that the loss of residential accommodation will only be permitted if there is a good planning justification or an identified social need for the proposed use. Furthermore, there would also be conflict with policy DM11 of the DMB and the [name] which seek to ensure HMO proposals do not result in the loss of an existing use that makes an important contribution to other Council objectives, strategies, and policies, and those to convert existing C3 dwellings demonstrate a lack of demand for the single-family use of the property. I return to other considerations below.

To the front of the appeal property is an area of hardstanding but it is open and available for parking and as such does not count as private amenity space. To the rear is an enclosed entirely paved area of approximately 42m2. It is functional and accessible to residents from the rear door of the property and from the front via a narrow gap to the side.

Clear expectations for specific outdoor space standards are set out in the [name] drawing on the [name] and its [name] and Working Spaces City Manual. Accordingly, based on an occupancy of nine people, the appeal property should provide a minimum of 90m2 of external amenity space. The actual provision means there is a significant shortfall in the amount of space provided, which would be exacerbated taking account of any children residing in the property in addition to the adult occupiers. The appellant’s evidence is that the appeal property is being used for women and children although no evidence is before me with regard to the numbers of children residing in the property.

A nine-bedroom HMO is a higher intensity use when compared to a single family. The paved external area is limited and offers no qualitative justification for such a substantial shortfall in amenity space, with the result that occupiers’ living conditions would be materially diminished. It would not provide adequate space for typical outdoor functions such as sitting out, access to greenery, drying washing, or children’s play. Nearby parks, at around 15 and [address] away, are not sufficiently close to offset this deficit.

For these reasons, I conclude that the development fails to provide acceptable living conditions for occupiers of the development, having regard to the provision of external amenity space.

As such it would conflict with policy PG3 of the BDP with regard to its requirement to ensure development is attractive, functional, inclusive, and able to be managed for the long term. It would also conflict with policy DM2 of the DMB which expects development to avoid unacceptable adverse impacts on amenity of occupiers and neighbours including ensuring access to high quality and useable amenity space. [name] find conflict with policy DM10 of the DMB in so far as it requires all new residential development to provide sufficient private useable outdoor amenity space appropriate to the scale, function, and character of the development, and in that the development does not meet any exceptions to the requirements of DM10 in particular that any reduction in standards must demonstrate that residential amenity will not be significantly diminished.

The appeal property is on a residential street comprising semi-detached and terraced housing of varying styles. The properties are separated from the street by front gardens and/or off-street parking areas. At one end the street joins [address] which at that point is a dual carriageway and has mix of residential, commercial, and retail properties. The other end of [address] leads to further streets which are residential in character. The evidence before me indicates that there is not a proliferation of HMOs in the immediate vicinity and therefore most properties are occupied as single family dwellings.

The use of this semi-detached residential dwelling as a nine-bedroom HMO in this location, is a more intensive use than as a single family house even if occupied by a large or extended family. It is likely to have a greater degree of comings and goings, and general activity than a single household.

With its extensions, the dwelling is now larger than many properties in the locality, yet it is served by a comparatively limited amount of external amenity space. As discussed above, the private outdoor space associated with the development is inadequate for the scale of the current use of the dwelling, which would lead to more intensive use of the available areas. This would result in outdoor activities being concentrated closer to neighbouring boundaries, with limited spatial separation or buffering. Consequently, the use of the appeal property would be more noticeable, increasing the likelihood that noise and disturbance would be experienced by the occupiers of neighbouring dwellings.

The appellant has provided significant detail about the operation and management of the property including the support that is available to occupiers. It is contended that this will ensure that no harm is caused to the residential character, and amenity of neighbouring residential occupants on [address]. Apart from the fact, that as discussed below, the use as HMO would not necessarily remain as currently managed by the appellant, the description of the activities occurring including the attendance of staff to meet and support residents on a regular basis is also out of keeping with the nature of activities from a single household.

The information submitted also indicates that some of the occupiers are likely to have dependent children with them. Notwithstanding the careful management envisaged by the appellant, this increases the intensity of the use of the appeal property and the likelihood of greater noise and disturbance being caused to occupiers of neighbouring properties than would normally be expected with even a large family single household.

For these reasons I conclude that the development adversely affects the living conditions of occupiers of neighbouring residential properties and character of the area having particular regard to noise and disturbance. As such I find that that the development is contrary to, policies DM2 and DM11 of the DMB and the [name] in so far as they require development not to have unacceptable adverse impacts on the amenity of neighbours and that conversions of existing dwelling houses to be used as HMOs should protect the residential amenity and character of the area. Policies PG3 and TP30 of the BDP are cited by the Council in its reasons for refusal but these are strategic policies that do not directly assist me in considering this issue and as such I do find specific conflict with them.

For an HMO in this location the Birmingham Parking Standards Supplementary Planning Document ([name]) recommends that there should be 0.5 parking spaces per bedroom, acknowledging that HMOs and shared housing tend to attract lower than average levels of car ownership. As a starting point, the appeal property should therefore provide five spaces.

The application states that three parking spaces are available. Although the Council suggests four could be provided, this is not confirmed by the appellant and, given the bin storage area and the absence of a detailed parking layout, I am not persuaded this could be provided. The crossover is only single-vehicle width and, while not a formal tandem arrangement, the current configuration would require vehicles to manoeuvre around each other or overrun the footway to arrive and leave. No layout or measures to address this are before me, and the [name] does not support tandem-style arrangements for HMOs.

Where there is insufficient off-street parking provided, the [name] sets out criteria that must be met to justify the use of on-street parking. I do not have evidence before me to show that all of those criteria are met. In particular evidence has not been provided to demonstrate that use of on-street parking will not lead to demand exceeding supply of on-street parking.

The Council have pointed to concerns about high parking demand and parking on footways in the area. [address] joins the [address] which is a dual carriageway at that point. Vehicles turn off the dual carriageway directly into [address]. There is a short stretch where no waiting at any time is permitted before parking is unrestricted. During my site visit, around 11.00am on a Friday, parking demand on [address] and nearby streets was high, with several properties lacking off-street parking. Footway parking was widespread, including on junction corners, which is likely to undermine pedestrian safety and reduce visibility. In these circumstances, even a small amount of additional on-street parking arising from the development would be likely to harm traffic flow and highway safety for drivers, cyclists, and pedestrians.

The appellant states that the property is not a typical HMO and that vehicle use is managed by a rota, which to date has avoided overspill parking. However, the appeal proposal is for an HMO, and occupiers can change; it is therefore reasonably foreseeable that future residents may generate greater car ownership and parking demand. The HMO SPD recognises that HMOs can increase pressure on on-street parking. While the site is close to bus stops and local amenities, the [name] already reflects accessibility by zone and sets parking standards accordingly.

For the reasons I have set out, the shortfall of two off-street parking spaces would result in an unacceptable impact on highways safety with regard to parking.

Although cited in the Council’s decision notice, policies PG3 and TP44 of the BDP are strategic policies and Policy DM2 of the DMB is concerned with amenity of occupiers and neighbours with consideration to several issues but not specifically parking or highways. As such, these policies do not provide specific guidance to assist my consideration of the appeal, and I do not find direct conflict with them.

However, as a result of my findings above I conclude there would be conflict with policy DM11 of the DMB which supports HMOs where amongst other things they would not give rise to unacceptable adverse cumulative impacts on highway safety and parking, with policy DM14 in so far as it requires development to ensure that the safety of highway users is properly taken into consideration and that any new development would not have an unacceptable adverse impact on highway safety, and with policy DM15 which states that the operational needs of the development should be met in terms of parking provision, and parking proposals should avoid highway safety problems. Finally, there is conflict with the Framework in respect of the unacceptable impact on highway safety. Public Sector Equality Duty (PSED) and human rights with regard to the personal circumstances of the occupiers

The failure of this appeal could affect the living arrangements of the current occupants of the HMO. As such this engages Article 8 of the [name] on Human Rights, set out in UK law within Schedule 1 of the Human Rights Act 1998 which is the right for respect for private and family life. This is a “qualified” right, which means that determining whether it may be infringed involves balancing the fundamental rights of individuals against the legitimate interests of others, and the wider public interest.

The appellant states the occupiers of the development include women, pregnant women, and children. I have also considered Article 3(1) of the [name] on the Rights of the Child (UNCRC) noting that the best interests of the child shall be a primary consideration in any planning appeal proceedings in which children are involved. No other consideration can be inherently more important than the best interests of the children, but the weight given to each consideration will depend on all the circumstances.

Allowing the appeal would allow continued provision of accommodation in accordance with the appellant’s stated aims. In this case it is in the best interests of affected children and their carers to have refuge accommodation but also that provides acceptable living standards and does not have an unacceptable impact on surrounding occupiers and local highway safety.

The appellant explains that the property operates as a short-term refuge with support, with occupiers moving on to independent living rather than remaining permanently. Accordingly, dismissal of the appeal may reduce the availability of this form of temporary accommodation, but it would not of itself remove the occupiers’ permanent home. In any event, refusal would not have immediate practical effects; it would simply leave the use unauthorised, and any subsequent steps, including a reasonable compliance period, would be a matter for the local planning authority. Notwithstanding this, the rights considered above weigh heavily in my consideration.

I have considered whether conditions could mitigate the identified harm. Although the appellant describes the use as specialist accommodation and I have no reason to doubt current management, the appeal concerns a nine-bedroom HMO. The continued operation and management of the premises only in its current form could not be secured by condition in a reasonable and enforceable way. Planning permission ordinarily runs with the land and as advised by the Planning Practice Guidance (PPG) “personal” permissions are rarely appropriate. Moreover, restricting any permission to the appellant would not prevent the use changing in future.

Sex, pregnancy, and age are protected characteristics to which the PSED under the Equality Act 2010 applies. The PSED requires local planning authorities and planning inspectors to have due regard to the need to eliminate discrimination and harassment, advance equality of opportunity, and foster good relations between people who share a protected characteristic and those who do not. This includes, among other things, removing or minimising disadvantages experienced by people with protected characteristics where those disadvantages are connected to the characteristic and taking steps to meet needs that differ from those of people who do not share it.

While the PSED does not prescribe a particular planning outcome, I have had due regard to the duty throughout my consideration of the main issues. In doing so, I have considered the implications of the proposal for occupiers with relevant protected characteristics, including the effects of the proposal on the living conditions of the occupiers themselves.

For these reasons, taking account of the effect of the PSED and human rights with regard to the personal circumstances of the occupiers, I am satisfied it would be proportionate and necessary to dismiss the appeal as discussed in my overall planning balance below.

The appeal property holds an HMO licence issued by the Council, The HMO licensing regime and the planning system operate under separate legislation and address different considerations. An HMO licence focuses on the management, condition, and safety of the property once it is in use.

Planning permission, by contrast, is concerned with the land-use implications of the development, and whether the proposed use accords with local and national planning policy. Therefore, the granting of an HMO licence does not imply that the use is acceptable in planning terms, nor does it override the need to obtain the necessary planning consent.

The development results in the unjustified loss of a family dwelling, fails to provide adequate external amenity space for occupiers of the appeal proposal, causes harm to living conditions of occupiers of neighbouring properties and the character of the area through noise and disturbance, and gives rise to highway safety concerns due to parking pressure. [name] have had regard to development plan policies and the Framework, which aim to meet the needs for accommodation in suitable locations in the public interest, the harms identified mean the proposal would be regarded as being in conflict with the development plan when read as a whole. I attach substantial weight to these findings against the appeal.

In favour of the appeal, the appeal property is being used to provide a form of temporary specialist accommodation. I attach significant weight to the need for this type of accommodation. Although dismissing the appeal would not remove a permanent home for occupiers including any children, it may interfere with the occupiers’ rights to a private and family life and home, under Article 8 as set out under the Human Rights Act 1998. Those are qualified rights, and interference with them in this instance would accord with the law and be in pursuance of a well-established and legitimate aim of protecting the rights and freedoms of others and the wider public interest in the effective operation of the planning system.

I have had due regard to the PSED, but the harms and policy conflicts outweigh the benefits in terms of eliminating discrimination against persons with the protected characteristics identified above, advancing equality of opportunity for those persons and fostering good relations between them and others. I conclude it is proportionate and necessary to dismiss the appeal.

Therefore, as the material considerations are not of sufficient weight to mean a decision should be taken other than in accordance with the development plan, the appeal is dismissed.