Appeal 6003283

The appeal is dismissed.

I note, from the application forms, that the application is made on a retrospective basis with the change of use having taken place in August 2021. The fact that the application has been made on a retrospective basis does not change the basis for assessment against the Local Plan taking into account relevant material considerations where appropriate.

The appellant refers to the proposal as being lawful, however, should the appellant wish to obtain a decision on whether or not the existing use is lawful for planning purposes, there is a mechanism to do so under Section 191 of the Town and Country Planning Act 1990 (as amended). This appeal is made under Section 78 of that Act against a refusal to grant planning permission and I have therefore dealt with it on its planning merits based upon the evidence before me. Having regard to the appellant’s submissions within this decision I refer to the existing use of the site but this is without prejudice to any future determination as to its lawfulness.

The main issues are i) the loss of an existing four-bedroom family dwelling and demand for a 4-bed house in multiple occupation in this location and ii) whether the proposal would provide appropriate private outdoor amenity space for future occupiers.

The appeal site is a four-bedroom, mid-terrace, residential dwelling with the proposal seeking planning permission, retrospectively, for change of use to a four-bedroom house in multiple occupation (HMO) for up to four, unrelated, individuals. It is acknowledged that there would be no external alterations as a result of the proposal. The site forms part of the Port Loop Development which is a modern residential development adjacent to [name]. It is undisputed that the appeal site has been used and occupied as an HMO for some years, however, there is no Certificate of Lawfulness in respect of such and that change of use, in planning terms, remains without a formal grant of planning permission.

As a result of this position, in planning terms, even though the appeal site is already in use as an HMO and not a family dwelling, the appeal proposals would involve the net loss of a dwelling in an area where there is demonstrated need for housing and there are constraints in delivering housing. The Council’s submissions outline that the [name] and Economic Development Needs Assessment 2022 demonstrates that new housing provision is failing to meet the city’s housing needs, particularly of 3 and 4 or more bed dwellings. The appeal site also falls within the sub area of Edgbaston where there is a demonstrated requirement for 4- bedroom (or more) homes with a low amount (less than 3,000 dwellings) of 4 or more-bedroom dwellings having been delivered across the city since 2011/2012.

Development Management in Birmingham Development Plan Document 2021 (DMB) Policy DM11 sets out several criteria that schemes to convert existing dwelling houses to be used as HMO’s would need to comply with to be permitted. Whilst the proposal may comply with some elements of this; Criterion d) of the policy states that the scheme would need to not result in the loss of an existing use that makes an important contribution to other Council objectives, strategies and polices. Paragraph 4.24 of the supporting text for DMB Policy DM11 refers to the Council’s Strategic Housing Market Assessment 2013 with the highest net change in the number of homes needed being for is for 3 and 4 or more-bedroom homes.

The appellant’s submissions do not challenge the above matters with their case resting, largely, on the property already operating as an HMO which I have acknowledged but the current use is which is one which does not currently benefit from relevant planning permission. In planning terms, assessing the case on its own merits, a grant of permission to a HMO would result in the appeal dwelling being formally lost as a four-bedroom dwelling. Based upon the evidence before me, existing dwellings of this size are of particular importance, and I consider that there is evidenced need to retain the city’s existing family housing stock for such use. The proposal would result in the loss of a family sized house which would reduce the overall supply of such houses which is of demonstrable need. The proposal would undermine the Council’s approach to housing supply and balanced communities as a result of failure to meet Criterion d) of DMB Policy DM11.

The proposal would be contrary to Birmingham Development Plan 2017 (DP) Policy TP35 which requires that the best use is made of the city’s existing housing stock and that the Council will seek to prevent the loss to other uses (through conversion or redevelopment) of housing and that such loss of residential accommodation will only be permitted if there are good planning justifications or an identified social need for the proposed use. The proposal would also be contrary to The Houses in Multiple Occupation Supplementary Planning Document 2022 which requires proposals comprising conversion of an existing dwelling house to a HMO must demonstrate that there is an evidenced lack of demand for the single-family use of the property, based on local housing, market circumstances at the time. More specifically it advises that evidence the property has been openly marketed at a citywide level a reasonable purchase or rental price for a period of at least 6 months should be submitted with an application with this evidence being evidenced by a suitable person in a relevant profession. This is a policy requirement regardless of, in this case, the existing use of the site without planning permission.

It is acknowledged that the proposal is effectively formalisation of an existing use but, as outlined, it is a use which does not benefit from appropriate planning permission and this is separate from the licencing regime which seeks to ensure that shared rental properties are safe, properly managed and meet legal standards – whereas planning permission is to control the use of property in the wider public interest against the relevant Local Plan Policies. The loss of a dwelling of this size, which would be suitable for family accommodation, is not outweighed by the need for HMO accommodation. The change of use, if formalised, would continue to have an adverse impact on housing supply of this nature for the reasons outlined.

DMB Policy DM11 requires, within criterion f) (amongst other matters), adequate living space including outdoor amenity space. In addition to this [name] 2022 states that all residents should have access to private outdoor amenity space of sufficient size and quality with City Note LW-13 (of the [name]) highlighting a requirement for HMO’s to Provide 10 sq./m per resident which would mean, in the context of the appeal proposal, that 40 sq./m of outdoor amenity space would be required for the proposal.

The appellant’s statement of case outlines that the appeal site is part of a modern development with a communal garden providing outdoor space for residents. This is reiterated within the appellant’s final comments, however, the Council have also provided an email from the agent, within the application process, which states that the appeal property has a front entrance and a rear driveway but there is no garden at the property. Despite this I note that the appeal site faces onto Rotton Park Street, with parking to the rear, (via a gated access) with what appeared, from my site visit, to be a communal garden for the properties surrounding it. Furthermore, I note further open space/landscaped areas immediately adjacent to the development which would be available to future/users of an HMO proposal.

[name] acknowledge that the proposal would not benefit from a dedicated outdoor amenity space which would be private to the host dwelling itself, based upon the provision of communal garden facilities and general outdoor space immediately adjacent to the development I find that the proposal would provide sufficient outdoor amenity space for future occupiers. The proposal stands within a modern development which was designed around a communal outdoor space – I do not find that it could be substantiated that the outdoor amenity space would be inappropriate for four unconnected individuals but would, conversely, be appropriate for a family home as was the basis upon which it was originally granted as part of the overall development of the site.

On this basis I find that in relation to the second reason for refusal the proposal would be consistent with the overarching objectives of DMB Policy DM11 and City Note LW-13 which both seek to ensure adequate living space including outdoor amenity space. Furthermore, I note that, within City Note LW-13 that the 10 sq./m per resident for HMO’s is specifically confirmed as being acceptable if provided communally, for individual units or a combination of both. I find therefore, notwithstanding the already acknowledged communal nature and design of the development which the appeal site stands within, that City Note LW-13 has an allowance for communal amenity space for HMO uses.

I note, as outlined within the appellant’s submissions, that no third-party harm has been identified, that the concentration threshold has not been breached and there are no other issues with the proposal including no objections from neighbouring residents or statutory consultees. Despite this, there is a requirement for proposals to be compliant with Local Plan Policies as a whole and, in this case, the proposal would result in an unacceptable loss of a 4-bedroom family dwelling in planning terms where there is an evidenced shortage of dwellings of this size within the city based upon the evidence before me.

For the reasons outlined above, and taking into account all other matters raised, I conclude that the appeal should be dismissed.