Appeal 6003532

The appeal is allowed and planning permission is granted for proposed internal and external alterations to existing building creating 1 No. additional flat at second floor level at [site address] , Fairfield, Liverpool [postcode] in accordance with the terms of the application, Ref 25F/2854, subject to the conditions in the attached schedule.

An application for costs was made by [name] of Almak Ltd against Liverpool City Council. This application is the subject of a separate decision.

The description of the proposal in the above banner heading, and my formal decision, is taken from the planning application form.

At the time of my visit the second floor contained two flats. However, I observed the layout of the second-floor flats were not as detailed on the proposed plans. I have therefore determined the appeal on the basis of the submitted proposed plans.

Whilst not included in the description of development, the submitted proposed plans also show internal alterations to Apartment 1 on the ground floor and Apartment 3 on the first floor. As these alterations are included on the proposed plans, I have had regard to them where relevant in my determination of this appeal.

The main issues are whether the proposed development would: • create an accessible housing scheme; and • meet biodiversity net gain objectives.

Policy H12 of the Liverpool Local Plan 2013 – 2033 (2022) (Local Plan) requires all new housing development to comply with Building Regulations Part M4(2) ‘accessible and adaptable dwellings’ (Part M4(2)). The sub-text to Policy H12 does however state, at paragraph 8.80, that in applying M4(2) account will be taken of site-specific factors that make a specific site less suitable for such dwellings.

The Council’s reason for refusal states that the proposed flats would fail to comply with Part M4(2) and the [name] specifically confirms that the internal and external door widths are substandard, and the bathroom layouts fail to provide 1.5m turning circles.

With regard to the subdivision of the second-floor flats into 2no. flats, a planning condition could be imposed to ensure that the entrance and internal door widths for these flats adhere to Part M4(2).

However, due to a combination of the constrained amount of space and the location of these 2no. flats within the roof space of this Victorian property, I find that it would likely be difficult to ensure that the bathrooms serving these flats could adhere to all the requirements of Part M4(2) in respect of providing a 1.5m turning area. As such, I cannot be certain that imposing a condition that requires the bathrooms of these proposed second-floor flats to adhere to Part M4(2) would be reasonable in this case.

Nevertheless, and having regard to sub-paragraph 8.80 of Policy H12, I find the existing constraints, and location at second-floor level, do make these flats less suitable for M4(2) housing and these are factors which I have taken into account in my overall conclusion.

Turning to the internal layout alterations to existing Apartments 1 and 3, on the ground and first floors respectively, there is no evidence to suggest that these alterations could not be undertaken without requiring planning permission. This therefore represents a fallback position of significant weight in favour of the proposed internal changes to the layout of Apartments 1 and 3, and any failure to comply with all the requirements of Part M4(2).

In view of all the above, whilst the proposed development would adhere to some requirements of M4(2), it would not adhere to them all. Consequently, the proposal would not provide fully accessible housing and therefore fails to comply with Local Plan Policy H12.

Nevertheless, due to the existing constraints within the building; the location of the flats at second-floor level; the fallback position in respect of the internal alterations that could be undertaken to Apartments 1 and 3; as well as compliance with other requirements of M4(2), in this case I conclude that the overall harm arising from the conflict with Policy H12 would be minor.

The submitted site plan and landscaping arrangements show that the existing side garden area would be re-turfed and 2no. new trees would be planted. At the time of my site visit this landscaped area was covered in soil and black sheeting.

The Council contend that the removal of vegetation from this side garden area, and its replacement with new turf, would involve the loss of existing habitat and therefore the provisions of the Environment Act 2021 (the Environment Act) relating to BNG are applicable to this development.

The Council state that without the required information relating to BNG it is not possible to assess the application against Local Plan Policy GI10, the requirements of the Environment Act, the National Planning Policy Framework (the Framework) or the Council’s Biodiversity Net Gain Advice Note (April 2023) ([name]).

With regard to the requirements of the Environment Act, the appellant states that the proposal meets the de minimis exception, as set out in paragraph 17 of Schedule 7A of the Town and Country Planning Act 1990 (the TCPA) and the [name] (Exemptions) Regulations 2024 (BGR Exemptions Regulations).

In this regard, whilst I note the Council’s concerns regarding the removal of vegetation from this landscaped area, I find that the continued use of the landscaped area to the side of the property as a garden area, as well as any re-turfing, would not represent a material change from its existing / previous use.

Consequently, and based on my observations on site, I do not consider that the proposed re-turfing of this landscaped area to the side of the appeal building, to enable its continued use as a garden area for occupants would involve the loss of existing habitat. I therefore find that the proposal would meet the de minimis exception in relation to BNG, as set out in the TCPA and the BGR Exemptions Regulations.

With regard to Local Plan Policy GI10, criterion 3 requires that all development contributes to ensuring a net gain in biodiversity. The submitted plans show that two additional trees would be planted in the side garden area. Subject to a condition securing the planting of these two trees, as well as the re-turfing of the landscaped area, I find the proposal would provide a net gain in biodiversity.

In terms of the [name], whilst this document is a material consideration, it is not a planning policy and this therefore limits the weight I can attribute to it. Furthermore, and for the reasons detailed earlier, I have in any case found that the proposal would meet the de minimis exception in relation to BNG and provide a net gain in biodiversity.

In view of all the above, I conclude that the proposal would meet the de minimis exception in relation to BNG, as set out in the TCPA and the BGR Exemptions Regulation, and the planting of two new trees within the garden area would provide a net gain in biodiversity. I therefore find no conflict with the statutory BNG objectives as set out under Schedule 7A of the TCPA (as inserted by Schedule 14 of the Environment Act) and Local Plan Policy GI10 where it seeks to ensure a net gain in biodiversity. The proposal would also accord with the provisions of the Framework where it seeks to minimise the impact on, and provide net gains for, biodiversity.

The submitted site plan and landscaping arrangements annotate that a 1m high slatted timber fence would be erected along the frontage of the site. I observed on my visit that front boundary treatments in this area predominantly consist of a mix of low brick walls with railings and / or hedging. Timber fencing to the front of the properties was not a common feature and I note the Council’s Officer Report raises a concern in respect of this proposed front boundary treatment.

Based on my observation on site, I find that timber fencing to the front of the property would not be in keeping with the character of the area and thus a condition has been imposed which requires details of the front boundary treatment to be submitted to, and approved in writing by, the Council.

I have found that the proposal would meet biodiversity net gain objectives with regard to the relevant policies of the development plan and statutory objectives. However, as the proposed development would not adhere to all the requirements of M4(2) it fails to comply with Local Plan Policy H12. Nevertheless, for the reasons given earlier in this decision, in this case I find the overall harm arising from the conflict with Policy H12 to be minor.

Paragraph 61 of the Framework refers to significantly boosting the supply of housing provision and the delivery of an additional flat in a sustainable location is a social benefit arising from this proposal, as well as positively contributing to the Council’s housing land supply. Economic benefits would also likely arise from employment during the conversion works, and occupation of the new unit through additional expenditure in the area. Environmental benefits would also arise from making effective use of land and the planting of new trees.

Cumulatively, I attribute significant weight to these benefits as material considerations in favour of the appeal proposal.

Accordingly, whilst the proposal fails to comply with Local Plan Policy H12, I have found the harm arising from the conflict with this policy to be minor and I conclude that in this instance there are material considerations in favour of the proposal that outweigh this conflict.

The Council has provided a list of suggested planning conditions, which I have considered against paragraph 57 of the Framework, and the advice contained in the Planning Practice Guidance, and I have edited to improve precision and enforceability.

In addition to the standard time limit condition (1), I have attached a condition specifying the approved plans to provide certainty (2). A condition requiring the external surfaces of the development to match those of the existing has been included to safeguard the character and appearance of the appeal building and the surrounding area (3).

A condition requiring the cycle storage facility detailed on the submitted plan to be installed, as well as an accessible route to the front boundary, is required to support the use of sustainable modes of transport (4). I have also imposed a condition requiring the entrance and internal doors to Apartments 5 and 6 to meet Part M4(2) standards in the interest of providing accessible homes (5).

A condition requiring the 2no. trees and areas of re-turfing to be provided within the first planting and seeding seasons following occupation of the development hereby permitted has been included, with the details of the size and species of these trees to be first submitted to and approved in writing by the Council (6). This condition is necessary to safeguard the character and appearance of the area and to increase biodiversity at the site.

I note the Council’s suggested conditions in relation to this landscaped area required additional details to be provided, including but not limited to details of the tree pits design, underground modular systems and future irrigation measures. However, given the scale of the development and the level of landscaping works proposed, I do not consider that these measures are necessary to make this development acceptable and thus they have not all been included within the attached condition.

As detailed earlier, a condition requiring the details of the front boundary treatment to be submitted to, and approved in writing by, the Council has been imposed to safeguard the character and appearance of the area (7).

The Council suggested a condition requiring the bin storage area to be provided prior to occupation. However, the proposal does not include the provision of a structure for the storage of bins and the submitted plans show that bins will be stored externally in the space to the side of the appeal building. I have therefore not included this suggested condition.

Furthermore, a condition is suggested requiring any refuse and recycled waste be kept within the curtilage of the premises and only placed outside on collection day. However, the appeal property is currently occupied as flats and the plans show that bins will be stored in the space to the side of the property. There is no particular reason why the provision of an additional flat at this premise would result in bins being left outside other than on the days when they are due to be collected. I do not consider that this condition is necessary to make the development acceptable.

The Council also proposed a condition specifying that the premises shall only be used as a C3 (a) dwellinghouse and for no other purpose, including other uses within Class C3. The Council’s suggested reason for the imposition of this condition is in the interests of neighbouring amenity. Given that the appeal relates to a building that is currently used as flats, and the appeal proposal seeks to increase the number of flats by 1no., it is unclear why this suggested condition is either reasonable or necessary to make the development acceptable in the interest of neighbouring amenity. I have therefore not included this suggested condition.

The Council has set out, within the list of recommended conditions, a number of informatives. Such informatives would have no legal effect, and I have not included them in the decision. However, the appellant has had sight of the Council’s recommended conditions and should, therefore, be aware of the contents of them.

The proposed development would conflict with the development plan but material considerations indicate that a decision should be made other than in accordance with it. The appeal is therefore allowed.

The development must be begun not later than the expiration of three years beginning with the date of this permission.

The development hereby permitted shall be carried out in accordance with the following approved plans: • Location Plan • Proposed Site Plan & landscaping arrangements – 24-021 (04)010 Rev P04 • Proposed Ground Floor Plan • Proposed First Floor Plan • Proposed Second Floor Plan (Amended 09.12.2025) • [name] • [name] (Amended 01.12.2025) • [name] (Amended 01.12.2025)

The external surfaces of the development hereby permitted shall match in materials, colour, style, bonding and texture those of the existing building. The infilled space of the windows to be removed from the gable elevation shall be rendered and painted to match the finish of the existing elevation.

The development hereby permitted shall not be occupied until the cycle storage facility, as detailed on the approved drawing titled “Proposed Site Plan & landscaping arrangements – 24-021 (04)010 Rev P04”, has been installed in accordance with the approved details and an accessible route to and from the front boundary provided. The installed cycle storage facility and accessible route shall be retained and remain available for use at all times thereafter.

The entrance doors and internal doors for the proposed second floor flats (annotated as Apartments 5 and 6 on the proposed second floor plan) shall meet the standards of Building Regulations Part M4(2) ‘accessible and adaptable dwellings’ in respect of door sizes and positions.

All tree planting, seeding and turfing as detailed on the approved drawing titled “Proposed Site Plan & landscaping arrangements – 24-021 (04)010 Rev P04”, shall be carried out in the first planting and seeding seasons following the occupation of the development hereby permitted, with the details of the size and species of the two new trees to be planted first submitted to and approved in writing by the Local Planning Authority. Any trees or areas of turf which within a period of 5 years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species.

Notwithstanding the details shown on the approved plans and the requirements of condition 2, the development hereby permitted shall not be occupied until full details of the position, height, design, materials and type of the front boundary treatment has been submitted to, and approved in writing by, the Local Planning Authority. The boundary treatment shall be installed in accordance with the approved details prior to first occupation of the development hereby permitted and shall be retained as such thereafter. End of Conditions