Appeal 6004335

The appeal is allowed and planning permission is granted for change of use from existing Class C4 HMO, to 8 person/ 8 bedroom HMO at [site address] , Portsmouth, [postcode] in accordance with the terms of the application, reference 25/01089/FUL and the plans submitted with it, subject to the conditions in the attached schedule.

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

A Section 111 Undertaking (S111)1 was submitted during the appeal process. This would secure a financial contribution to mitigate the effect of the development on the [name]. I shall return to this later in my decision.

The Council has made reference to the Pre-Submission Portsmouth Local Plan 2024 (emerging plan) which was approved for public consultation on the 28 May 2024 and has recently been submitted for examination on the 18 March 2026. Paragraphs 48 and 49 of the National Planning Policy Framework 2024 (the Framework) state that due weight should be given to such policies according to the stage of preparation of the emerging plan, alongside the extent to which there are unresolved objections to relevant policies and the degree of consistency of the relevant policies in the emerging plan to the Framework.

The evidence indicates that the emerging plan has not yet reached adoption stage and is at an early stage of plan preparation. Therefore, the policies within it, as material planning considerations, are of limited weight and cannot at this stage be afforded full weight in decision making terms. I am therefore required to determine 1 The Local Government Act 1972. this appeal in accordance with the relevant saved policies of the Portsmouth City Local Plan 2001-2011 (PLP) in accordance with Section 38(6) of the Planning and Compulsory Purchase Act 2004.

There is no dispute regarding the external works to the property. The Council indicates in their committee report that the proposed single storey rear extension, roof addition, front rooflights and alterations to the front first floor window, shown on the proposed plans, would constitute permitted development2 under the property’s existing lawful use as a use class C4 House in [name] (HMO) and would not require planning permission, and I have no reason to disagree.

The main issues are: • the effect of the development on the housing mix of the area, having regard to local amenity; and • the effect of the proposal on the integrity of the [name].

The evidence indicates that the appeal site is currently in lawful use as a small HMO (use class C4). The proposal seeks to increase the residential occupancy to 8 occupants, thereby resulting in a large sui generis HMO.

The Houses in [name] (HMOs), [name] and Balanced Communities Supplementary Planning Document (2019) (HMOSPD) provides guidance in considering the impact of an HMO proposal having regard to the concentration of existing HMOs in the area. Although the HMOSPD does not have the status of policy, this document is an important material consideration, providing guidance on the application of saved Policy PCS20 of the PLP. The HMOSPD sets out that a community is imbalanced where more than 10% of residential properties within a 50m radius of the area surrounding the application property are already in an HMO use. From the evidence provided, the proposal would exceed this threshold.

The HMOSPD further sets out that where planning permission is sought to change the use of a Class C4 to an HMO in a [name] use, in areas where concentrations of HMOs exceed the 10% threshold, consideration is required. This consideration relates to the potential harm to amenity caused by an increase in the number of bedrooms in an already unbalanced community.

The proposal would increase the residential occupancy at the property to 8 occupants, where 4 individuals currently reside. It is noted that the property is currently being extended through permitted development rights where up to 6 occupants could reside under the lawful use class as a small HMO. The potential increase in occupancy at the appeal property would, under this scenario, create an additional 2 residents at the site. This is a relevant material consideration, where building works were underway to the property at the time of my site visit. As such, I 2 The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). consider that the fallback position is a greater than theoretical possibility, and that there is compelling evidence that if the appeal were dismissed, the fallback would be pursued. Therefore, the potential increase in residential occupancy at the property would be 2 occupants.

The HMOSPD additionally identifies matters relevant to assessing material harm to neighbouring and local occupiers. There is no evidence before me indicating statutory nuisance complaints relating to the existing HMO use at the appeal site. Neither is there commentary from the Council’s environmental health officer regarding the need to install sound insulation to mitigate against noise transmission with the adjoining terraced neighbours.

There is little evidence to show that the occupancy and layout is so significant as to have a materially harmful effect on the living conditions of local residents due to noise and disturbance or the frequency of comings and goings at the property. Any additional noise and disturbance as a result of the HMO, along with the potential for anti-social behaviour, would not necessarily be greater than might occur if the property were occupied by up to 6 unrelated individuals. Moreover, the scale and intensity of use, even with 8 unrelated occupiers, would not be so significant as to result in materially harmful effects on the living conditions of nearby residents.

I have not been provided evidence that the proposal would adversely affect local residential amenity through parking related pressures, or increase the risk of accidents in the area; noting that the Councils highways officer has raised no objection to the development which is a material consideration to which I attach significant weight. Nor have I been given substantive evidence that the proposal would place undue strain on the local sewer or drainage system, generate waste issues or harm existing residents’ access to local medical facilities. Moreover, none of these matters carry sufficient weight or are supported by compelling evidence to alter my overall conclusions, particularly given the increase in occupancy at the site. The proposal would therefore accord with the HMOSPD, which is a material consideration and reinforces my findings.

Whilst the emerging plan contains a policy restricting proposals to exceptional circumstances for a change of use from a small HMO to a large, sui generis HMO in areas where HMO concentrations exceed the 10% threshold, there is no reference to this requirement within the saved policies of the PLP in the Council’s reason for refusal. As indicated in the preliminary matters section of this appeal decision, limited weight is given to the emerging plan which isn’t sufficient to alter my overall conclusion.

Accordingly, I find that the proposal would be acceptable with regard to the effect of the development on the housing mix of the area, having regard to local amenity. I find no conflict with saved Policy PCS20 of the PLP which permits HMO proposals where the community is not already imbalanced by a concentration of such uses or where the development would not create an imbalance. Furthermore, the proposal is in accordance with saved Policy PCS23 of the PLP in so far as it relates to the protection of amenity and the provision of a good standard of living environment for neighbouring and local occupiers as well as future residents and users of the development.

The appeal site falls within the recognised zone of influence of the Solent and Southampton Water Special Protection Areas (the [name]), which include the Portsmouth Harbour Special Protection Area (SPA)/Ramsar site, Chichester and [name]/Ramsar site, Solent and Isle of Wight Lagoons Special Area of Conservation (SAC), [name], Solent and [name] and the Solent and [name], which are [name] as defined by the Conservation of Habitats and Species Regulations 2017 (as amended). The European Sites are internationally important due to their bird population, including over-wintering waders and wildfowl such as dark-bellied brent geese. There are also plants, habitats and other animals of national and international importance.

Saved Policy PCS13 of the PLP sets out that development which would have an adverse effect on a European Site would be refused. It further requires development to recognise the importance of currently important Brent goose feeding sites and high tide wader roosts outside the site boundaries to the ecological integrity of the [name].

The conservation objectives for the [name] are to ensure that the integrity of the sites is maintained or restored as appropriate, to protect the vulnerable over-wintering waders, wildfowl and their habitats. The principal pathways of impact include population growth associated with new housebuilding and increased recreational activity at the coast, resulting in disturbance to the bird population. Additionally, the conservation status is identified as unfavourable due to eutrophication caused by increased levels of nitrogen and phosphorous in the water environment.

The proposal would result in an increase in residential occupancy at the appeal site. Given the susceptibility and vulnerability of the qualifying features of the [name] to such uses, particularly when considered in combination with other local development, the proposal would have a likely significant effect on the [name] through recreational activity and wastewater implications from the increase in residential occupancy. I must therefore consider whether measures could be put in place to avoid or mitigate these impacts.

The appellant has provided a signed S111 with the appeal, based on an increase from the current residential occupancy at the property of 4 individuals to 8 residents. The legal agreement secures financial contributions towards mitigation measures in accordance with [name] ([name]) (2024) (BAS), which aims to prevent additional recreational activity from harming the birds, through the employment of a team of rangers who patrol the coast and lead on engagement activities with monitoring reviews carried out. Advice is given to members of the public to encourage behaviour changes which will benefit the over-wintering birds and their vulnerability to disturbance.

The S111 also secures contributions in accordance with the [name] Strategy for [name], for the 2021-2023/24 period (2022) (UINNMS) with provision towards the Council’s nutrient neutral mitigation credit bank, or third-party mitigation. Through the acquisition of farmland and/ or the change in management of existing land holdings, from intensively used agriculture releasing high levels of nutrients into the Solent, to a use that produces a much lower nutrient output. The difference in nitrogen output is therefore used to offset the impact of the new development. In addition to the payment of a contribution, the UINNMS requires new development to be granted with standard conditions to require higher levels of water efficiency (an expected 110 litres per person per day).

The Council has commented that the S111 has been agreed and are satisfied that the proposed mitigation paid would be sufficient to secure adequate mitigation against any likely significant effect on the [name] arising from the development.

Natural England (NE) has been consulted as part of this Appropriate Assessment and is content that the measures secured by the S111 would mitigate the adverse effects associated with the proposed development to the [name]. As the competent authority, I am satisfied that the measures funded in this manner would secure and ensure the delivery of mitigation sufficient to address the harm likely to be caused by the development.

Taking account of the consultation response from NE, and the approach to the application of mitigation measures set out in the BAS and UINNMS, I am satisfied that the financial contribution is necessary to make the proposed development acceptable in planning terms. The obligation would contribute towards the provision of appropriate mitigation measures and given the location of the site, within the recognised zone of influence of the [name], the contribution is directly related to the appeal scheme. In addition, as it relates to a standard charge based on the scale and type of residential development proposed, I consider it to be fairly and reasonably related to the proposal in scale and kind. The S111 therefore complies with the requirements of Regulation 122 of the Community Infrastructure Levy Regulations 2010 (as amended) and paragraph 58 of the Framework.

For the above reasons, having sought the views of NE and following appropriate assessment, I therefore conclude that the proposal would not have an adverse effect on the integrity of the [name]. It follows that the proposal would comply with the Conservation of Habitats and Species Regulations 2017 (as amended) and saved Policy PCS13 of the PLP which requires the refusal of development which would have an adverse effect on a European Site.

Any issues relating to noise from construction of the external works fall outside the considerations of this appeal, which is dealing only with the change of use.

Representations have additionally been received from interested parties with regard to the proposed living accommodation for future occupiers. The Council are satisfied with the internal room sizes and configuration shown on the proposed plans, and I have no reason to disagree.

The appeal has been assessed on its planning merits and criticism of the Council’s handling of the planning application by the appellant and interested parties has not formed part of my consideration.

The Council has suggested several conditions which I have considered in light of the advice in the Framework and Planning Practice Guidance. [name] agree the conditions are necessary, I have adjusted the wording of the conditions to improve precision and enforceability. I have also added wording to ensure that the occupancy of the property is restricted.

In addition to the standard three-year time limit condition for implementation, I have imposed a condition that defines the approved plans in the interests of certainty.

Conditions to agree details of bicycle storage are necessary to support the use of sustainable methods of travel and is in accordance with the quantum required in the Council’s parking standards set out in the PSTASPD. Additionally, a condition requiring details of the refuse and recycling storage facilities is necessary in the interest of visual amenity and to ensure that the proposal supports the Council’s relevant waste reduction targets.

In accordance with the UINNMS, to ensure that the development does not exceed the scope of the nitrate mitigation credits purchased, a condition is necessary to restrict future water usage, in the interests of protecting the integrity of the [name].

It is not necessary to impose a condition requiring the works shown on the approved plans to be completed before the first occupation of the building as a large sui generis, 8-bedroom, 8-person HMO. The change of use could only be implemented once the extensions have been carried out, and the proposal would therefore proceed in accordance with the approved plans in any event.

I am satisfied that the development would have an acceptable effect on the housing mix of the area, having regard to local amenity; and would not have an adverse effect on the integrity of the [name]. The proposal accords with the development plan taken as a whole and there are no other material considerations to suggest that the decision should be made other than in accordance with it. Therefore, for the reasons given above, the appeal is allowed.

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: Drawing nos. TQRQM25259122850221, TQRQM25259122946927 and PG.1114 · 25 · 4 [name].

Prior to the first occupation of the property as a large sui generis, 8-bedroom, 8-person House in [name], secure and weatherproof bicycle storage facilities for four bicycles shall be provided in accordance with details that have first been submitted to, and approved in writing by, the local planning authority. The approved bicycle storage facilities shall thereafter be retained for the continued use by the occupants.

Prior to the first occupation of the property as a large sui generis, 8-bedroom, 8-person House in [name], refuse and recyclable waste storage facilities shall be provided in accordance with details that have first been submitted to, and approved in writing by, the local planning authority. The approved waste storage facilities shall thereafter be retained for the continued use by the occupants.

Prior to the first occupation of the property as a large sui generis, 8-bedroom, 8-person House in [name], written documentary evidence, in the form of a post construction water efficiency calculator, shall be submitted to and approved in writing by the local planning authority to demonstrate that the development has achieved a maximum water use of 110 litres per person per day as defined in paragraph 36(2)b of the Building Regulations (2010) (as amended). End of conditions