Appeal 6005726

The appeal is allowed and planning permission is granted for the change of use from a dwelling house falling within class C3 of the Town and Country Planning Use Classes Order 1987 (as amended) (the 1987 Order) to a small house in multiple occupation (HMO) (Class C4) at [site address] in accordance with the terms of the application, Ref 2025/05648/PA, subject to the following conditions:

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 drawing nos 25077 – 101 “Proposed Site Plan and Elevations” and 25077 – 300 Rev 01 “Site Location Plan and [name]”.

The development hereby permitted shall not be occupied by more than 3 persons at any one time.

I observed at my site visit that the property is currently undergoing extensive internal renovation. It was evident that an en-suite serving the front first-floor bedroom was being installed which is not shown on the proposed floor plans (ref 25077 - 300 - Rev 01). I have however, determined the appeal on the basis of the submitted plans.

The main issues of the appeal are: • the effect of the proposal on the provision of family housing in the area; • the effect of the proposal on the living conditions of the occupiers of no [address]; and, • whether the proposal provides adequate internal communal space for future occupants.

The appeal property is a two-storey, 2-bedroomed terraced house on the south-eastern side of [address], a residential street. The character of the street scene is formed of similar terraced properties along uniform frontages behind small front gardens.

Policy DM11 of the Development Management in Birmingham Development Plan Document 2021 (the DPD) states that proposals for the change of use of existing dwellinghouses to HMOs will be permitted subject to several criteria, including d) that it would not result in the loss of an existing use that makes an important contribution to other Council objectives, strategies and policies. Policy TP35 of the Birmingham Development Plan (2017) (BDP) seeks to prevent the loss of the existing housing stock to other uses unless there are good planning justifications or an identified social need for the proposed use.

The council advances that Birmingham has a higher than average proportion of families with dependent children, that there is a shortage of family dwellings in the city, and that the proposal would add to that shortfall. In support of its position, the council has referenced the [name] and Economic Development Needs Assessment (HEDNA) (2022) and its [name] (2023-2028) (the HS) which demonstrate that the demand for family accommodation of all sizes is not being met. The HEDNA highlights the need for larger family dwellings but also confirms a need for 2-3 bed houses. The HS sets an objective, reflective of Policy TP35, to make the best use of the housing stock.

The council’s “Houses in [name]” Supplementary Planning Document ([name]) (2022) requires that proposals for the conversion of C3 dwellings to HMOs demonstrate there is an established lack of demand for a family use of the property based on local housing market circumstances at the time. A six-month marketing of the property was undertaken in accordance with the [name] and the results accompanied the application.

The council confirms that it is satisfied with the way in which the property was marketed, but concludes that the asking price was too high, based on the eventual acceptance of an offer £50,000 lower. It is also critical of the decision not to offer the property for rent. The appellant advises that the original asking price was set below the market average in recognition of the extensive refurbishment works required which it is suggested include a replacement central heating system, new electrical wiring and measures to address damp. Only one offer was received to purchase the house as a family dwelling, and this was subsequently withdrawn once the extent of refurbishment works and their likely cost were identified through a survey. The property was then sold to an investor wishing to use the property as an HMO; a use, it is suggested, would allow the costs of refurbishment to be recouped.

The HMO SPD guidance requires evidence that the property has been openly marketed at a city-wide level at a reasonable purchase or rental price (my emphasis) for a period of six months. It advises that the evidence should be verified by a suitable professional, such as an [name], and that information relating to any offers made/interests expressed must be submitted. The appellant’s submissions show compliance with all aspects of this guidance.

In response, the council acknowledges that it does not have access to professional expertise and that its conclusions on the appropriateness of the evidence is based on assumptions that the asking price was too high and asserts that insufficient detail of the offer made was provided. [name] appreciate the council’s position, I must be led by the evidence and given that the guidance of the [name] was followed by the appellant and that this was verified by an appropriate professional, I find the council’s position less convincing.

Taking all of the above into account, whilst the HEDNA evidence shows a need for family housing in the city, including 2-bed properties, the appeal submissions justify, through the submission of marketing evidence in accordance with the council’s adopted guidance, that the property failed to sell when appropriately marketed as a family dwelling. This evidence is a material consideration sufficient, in this case, to justify a departure from Policy DM11. Whilst not required by policies, the evidence therefore also provides sufficient justification for the conversion of the property to an HMO. Compliance with Policies PG3, TP27 and TP35 is achieved. In its reason for refusal, the council determines that the proposal is contrary to Policies TP28 and TP30 of the BDP. As these policies relate to the provision of new-build housing, I do not find them relevant in this case.

Criteria b) of Policy DM11 confirms that the change of use of dwellings to HMOs will only be permitted where the proposal would not result in a family dwellinghouse being sandwiched between two HMOs or other non-family residential uses. In this case, as no [address] is in HMO use, and no 36 is a C3 family dwelling, the proposal would result in no 36 being sandwiched between two HMO uses.

The explanatory text supporting Policy DM11 and the [name] explain that HMOs can have adverse impacts on residential amenity where they lead to concentrations in the immediate vicinity of the application site. For this reason, the sandwiching of family dwellings is resisted by the policy. The HMO SPD provides examples of how the sandwiching policy is applied. It notes that where small alleyways exist between properties, as is the case between Nos 36 and 34, this does not negate the policy requirements. Whilst the council’s statement introduces additional reasons for resisting the sandwiching of family houses, its reason for refusal in this case refers only to concerns about noise and disturbance.

I acknowledge that individuals occupying an HMO may live more separate, independent lives, including work and leisure patterns, than a single-family household. However, the additional disturbance associated with the comings and goings of a three-person HMO is not likely to be significantly more harmful than those of a 2-bed family dwelling, and the associated noise and disturbance would be unlikely to materially differ. I am mindful that the council’s evidence relies solely on the conflict with Policy DM11d and it has not explained how a 3-person HMO would lead to additional, unacceptable disturbance.

The appellant suggests that soundproofing the property could be required by a planning condition. However, given my conclusions above, such measures would not be necessary and would not therefore meet the tests in the Framework.

I am satisfied therefore, that occupation as a 3-person HMO would not give rise to levels of noise and disturbance over and above those experienced as a family dwelling. Despite the conflict with criteria b) of Policy DM11, the low occupancy of the proposal represents circumstances sufficient to depart from it in this case. Policies PG3, TP27, TP28, TP30 and TP35 of the BDP are referenced in the council’s reason refusal but do not address matters relevant to this main issue.

The proposal would provide internal accommodation consisting of a bedroom, living room, kitchen and store at ground floor, and two further bedrooms and a bathroom at first floor. The council advances that internal communal space would be inadequate to meet the needs of occupiers.

In its appeal submissions, the council expands on this position and confirms that its concerns relate solely to the size of the kitchen. It refers to its [name] and [name] (2019) (PMS) as the relevant guidance for minimum floorspace requirements for shared accommodation.

The submitted plans indicate that the kitchen measures [address] metres. The council’s guidance requires a kitchen of 6.[address] metres for a property with up to 5 occupants. The size of the kitchen in the proposed HMO falls short of the guidance by 0.[address] metres, however it would have just 3 bedrooms and the appellant is willing to accept a condition restricting occupancy to a maximum of 3 people.

I find that the marginal shortfall in kitchen floorspace would be mitigated by the lower occupancy of the proposal relative to the guidance and that therefore the size of the kitchen would not lead to unsatisfactory living conditions for occupiers. The proposal accords with Policies PG3 and TP27 of the BDP and Policies DM2 and DM10 of the DPD in this regard.

Interested parties raise concerns in relation to anti-social behaviour, parking and highway safety. I have not been provided with any evidence that the proposal would give rise to an increase in anti-social behaviour. I note the Highway Authority raise no objections regarding parking or highway safety, and the council has not found the proposals unacceptable in regard to any of these matters. I have no reason to conclude otherwise.

I have had regard to the suggested conditions of both parties. In addition to the standard time limit condition (1), I have attached a condition specifying the approved plans to provide certainty (2). I have imposed a condition (3), restricting the occupancy of the HMO to safeguard the living conditions of neighbouring properties and to ensure internal communal floorspace is adequate. I have not included the appellant’s suggested sound-proofing condition for the reasons I explain above.

For the reasons given above the appeal should be allowed.