Appeal 6004628

The appeal is dismissed.

The Inspector notes differences between the description of development used by the appellant and the Council in regard to the above appeal. The decision notice includes reference to a two-storey side extension ([address]) which has been constructed within the red lined application site. Planning permission was granted under 2023/08491/PA for an extension which the Council and Appellant have confirmed has not been built in accordance with the approved plans. No agreement to the description however has been made in writing by the appellant, as such I have utilised the description of development as per the application form in the banner heading. The issue of the extension being unlawfully constructed is a matter for the appellant and the Council’s enforcement team to resolve.

Two of the reasons for refusal cited within the Council’s decision notice relate to living conditions as well as the character and appearance of No.20 as built. However, as these do not relate to the applied for development, I have not found them determinative in the appeal. As such my decision does not cover the arguments in relation to the living conditions and character an appearance of No.20 and instead has focused on matters that relate to the applied for development.

The Council have provided the set of plans which they made their decision by, which are neither of those submitted by the appellant at appeal. As such both of those submitted by the appellant at appeal are amended plans. The amendments on both sets of amended plans include the increase in number of bedrooms of Flat 3 (within [site address] ) from one to two bedrooms, and the alteration of its layout so Flat 3 can only accessed via a stairwell from No.20, which the appellant has stated is not included within the development.

The appeal process is not intended to be an opportunity to evolve a scheme, and I am mindful of the Procedural Guide: Planning Appeals – England: For appeals relating to applications dated on or before 31 March 2026 (the Procedural Guide). These amendments amount to a fundamental change. This would also cause procedural unfairness resulting in prejudice to interested parties by depriving those who should have been consulted on the change the opportunity to comment. As such I do not accept either of the amended plans submitted as part of the appeal, and therefore I have determined the appeal on the basis of the proposed plans submitted at the application stage ([name]: HP-SL-02), hereafter referred to as the ‘proposed plans’.

It was also apparent from my site visit that construction works have already been carried out to No.22, which do not appear to be in accordance with the proposed plans. For the avoidance of doubt, I have made my decision on the basis of the submitted ‘proposed plans’ from the application stage.

Within the decision notice the Council state the proposal is contrary to Policy DM11 of the Development Management in Birmingham Development Plan Document (DPD), yet this relates to change of uses to houses in multiple occupation (HMO). The officers report as well as the appellant’s statement of case consider the development against Policy DM12 of the DPD, which covers the subdivision of dwellings and is therefore relevant. I also note following the appellants reference to Policy DM12 of the DPD they cite Wavendon Properties Ltd v SSHCLG & Milton Keynes Council [2019] EWHC 1424 (Admin), in relation to the importance of identifying the most important policies to an appeal. I have however not been provided with the full details of this item of case law to ascertain it relevance to the appeal. I have though considered the proposal in relation to Policy DM12 of the DPD rather than Policy DM11 of the DPD, and I am satisfied that the Council’s error has not prejudiced the appellant.

The Council have also introduced Policy TP30 of the Birmingham Development Plan 2017(the LP) and Policy DM10 of the DPD in their statement of case in relation to loss of family housing. This would cause procedural unfairness resulting in prejudice to interested parties by depriving those who should have been consulted the opportunity to comment. As such these do not form part of my

The main issue is the proposed developments effect on the provision of family housing in the area.

The proposal is for the change of use of No.22 from a 3-bedroom dwelling to two self-contained 1-bedroom dwellings. The Council have argued that the change of use would result in the loss of a family size house, which would have an unacceptable impact on the provision of family housing in the area.

In opposition of the appeal the Council have referenced the [name] and Economic Development Needs Assessment 2022 (HEDNA) and the Birmingham Development Plan Authority Monitoring Report 2024-2025. These highlight the city-wide undersupply of 3-bedroom houses since 2011/12, whilst also demonstrating there has been a considerable supply of 1-bedroom properties. The HEDNA indicates a city-wide need for 3-bedroom dwellings and in combination with the [name] 2023-2028, highlights the relatively high proportion of households in Birmingham that have dependent children, further emphasising the need for family size housing in general.

The appellant has highlighted sections of the HEDNA in relation to the [name] sub area which is in relative proximity of the site. However, the officers report indicates the site is located in the ‘Weoley & [name] ward which is within the Northfield rather than the ‘[name] sub area within the HEDNA. These areas though do have a comparative relatively high proportion of existing 3-bedroom households within the 2011 Census data in the HEDNA; yet this is taken into account in the HEDNA’s recommendations, which states there still is a greater demand for 3-bedroom dwellings in these areas. The appellant also provides data for the 2021 Census for the Census’s ‘[name] sub area, though the site is not located within this also.

Policy DM12 of the DPD covers the subdivision of properties into self-contained dwellings and states that development will be supported where “It will not result in the loss of an existing use that makes an important contribution to the Council’s objectives, strategies and policies.”. Though the property would remain in the same use class, the proposal nonetheless constitutes a material change of use that requires planning permission. I also note within the supporting text of Policy DM12 of the DPD it states favourable consideration would not usually be given to the subdivision of a property with 3 or less bedrooms, and it also further highlights the need for 3-bedroom properties and family accommodation.

The appellant has raised a number of appeals where the loss of a dwelling has been found acceptable. I have not been provided the full details of these, as such I do not know how directly comparable they are to the appeal before me now. I note two are for the change of use to HMOs so have a different policy position. The appeals raised also either do not reference the level of evidence before me now to oppose the loss of family housing1, or are supported by additional items of evidence to justify the loss of family housing that does not accompany this appeal2. The appeal APP/P4605/W/24/3357428 is of greater relevance concerning the subdivision of a 5-bedroom dwelling, however this is supported by a Local Housing Need Assessment in a different area to the appeal site. As such the current appeal is not supported by the same evidence.

Conversely the Council have raised a number of appeal cases3 that attribute weight to the HEDNA demonstrating the need for family housing. However, these includes changes of use to HMOs or residential institutions, so are also materially different, so are of limited relevance also.

The appellant has also raised an argument that no approvals for change of uses from houses to flats have been approved within the immediate vicinity of the site. I have not been provided though with any details of what these search parameters included in terms of distance, timeframe, etc.

Policy TP35 of the LP states that “Best use will be made of the existing dwelling stock” and that the Council will seek to prevent loss to other uses. The appellant has argued that more site-specific evidence demonstrates there is not a demand for family size housing locally, though the evidence they have provided relates to 1 APP/P4605/W/21/3270981 2 APP/P4605/W/23/3334604, APP/P4605/W/24/3357428 3 APP/P4605/W/24/3357323, APP/P4605/W/22/3300940, APP/P4605/W/24/3343609 other areas of the city and not where the appeal site is located. On the basis of the evidence submitted there is demonstrable greater need for the property as a 3- bedroom dwelling ̧ and therefore the proposal would not make best use of the existing dwelling stock. It follows that the loss of its existing use would be harmful to the Councils other objectives and strategies.

I conclude that the development would have an unacceptable harmful effect on the provision of family housing within the area. The proposal is in conflict with Policy DM12 of the DPD and Policy TP35 of the LP, which seek to control the subdivision of dwellings and that best use is made of existing dwelling stock.

The appellant has raised that when a previous application at the site (2023/01903/PA) was determined 3 years ago, the Council did not have a five-year housing land supply. The Council have stated they now have a 6.4-year housing land supply. Though the appellant has broadly queried the deliverability of several types of housing permissions, they have not provided an alternative housing land supply figure, nor provided any evidence, as such this is not a substantiated position.

The proposal would contribute towards housing supply, and would comprise some economic, social and environmental benefits through the utilisation of the property for additional residential units. I also appreciate that the site is located in proximity to a range of services and facilities, and that there is no objection from the transportation consultee in relation to parking and cycle storage. The Framework however requires areas to be provided with an appropriate mix of housing to meet their identified need, which the development would be contrary to. As such the benefits of the scheme would not outweigh the harm identified nor be in accordance with the Framework when read as a whole.

The proposal conflicts with the development plan and there is no material considerations raised, including the Framework, that would outweigh that conflict. For these reasons, the appeal should be dismissed.