Appeal 6006014

The appeal is dismissed.

The appeal property has extant planning permission for change of use to an 11- bedroom (18 occupant) house in multiple occupation (sui generis)1. The appeal proposal differs from the permitted scheme insofar as a ground floor room shown as a communal living area on the approved scheme would be utilised as an additional double-occupancy bedroom. The site’s planning history is a material consideration in my determination of the appeal.

The description of development refers to a house in multiple occupation (HMO) comprising 12 studios for a maximum of 20 persons. The appellant’s evidence is inconsistent, with conflicting occupancy figures. The submitted plans show all studios capable of double-occupancy, potentially resulting in 24 occupants, whereas other information indicates one single-occupancy studio per floor, giving a total of 21 occupants. However, the occupancy rate could be controlled through the mandatory HMO licencing regime. Therefore, for the avoidance of doubt, I have determined the appeal on the basis the proposed HMO would accommodate up to 20 persons, as set out by the description of development in the banner heading above.

The main issue is whether the proposed development would provide a suitable standard of living conditions for future occupiers, with regard to communal facilities, disturbance and privacy. 1 LPA reference 25/00581/FUL

The appeal site comprises a large 3-storey building with associated car parking area to the rear and located within the southern edge of the city centre. Each floor would comprise 4 double occupancy studios served by a communal kitchen.

The Council’s HMO Amenity Design Guide does not comprise part of the development plan but is used by the Council’s Housing Standards team to ensure the quality of HMO’s. The Design Guide prescribes minimum kitchen sizes, requiring that for up to 5 persons, kitchens should provide at least 7sqm, with an additional 2sqm per person thereafter.

The 3 communal kitchens would each have a floor area of around 9sqm. Therefore, each kitchen would be suitable for use by no more than 6 persons, equating to a total of 18 occupants across the proposed HMO. Consequently, applying the [name] standard to the proposed HMO, the communal kitchens would not be of sufficient size to accommodate the prospective number of occupants.

The Design Guide specifies the facilities that would be required to serve the number of occupants. For example, a kitchen for 7 persons would require 7 standard wall or base units; 3m length of worktop; 2 fridge-freezers; 1 standard size sink and 1 dishwasher or a full-size double sink and drainer; 2 cookers or 1 cooker plus 1 combination microwave oven and grill plus a fixed 2 ring hob. Whilst the submitted plans provide an indicative layout of the proposed communal kitchens, these do not demonstrate that adequate fixtures and appliances to serve the number of intended users would be accommodated.

Accordingly, due to their small size, the communal kitchens would fail to provide adequate space for future occupants to cook, dine and interact, and would therefore be of an unsatisfactory standard.

No other internal communal space is proposed within the HMO. [name] recognise that the Council’s guidance states that a dedicated communal lounge is not required where individual units provide sufficient private internal space, the deficiency in shared kitchen space is compounded by the absence of any other shared space for relaxation or socialising.

Furthermore, the sole window of ground floor unit Studio 12 would face directly onto the shared car park with parking spaces immediately adjacent to the window and entrance door. Given this proximity, future occupiers of this studio would be subject to unacceptable levels of overlooking by users of the shared car park, along with noise and disturbance from vehicle movements. This harm would be exacerbated by the nature of HMO occupation, particularly in this case where limited communal space is provided, such that residents are likely to spend a greater proportion of time within their rooms.

Overall, I conclude that the proposal would result in unacceptable living conditions for future occupiers, with regard to communal facilities, disturbance and privacy. Therefore, it would not comply with Policy CP3 of the Derby City Local Plan – Part 1: [name] (January 2017) (the [name]) and Policies GD5 and H13 of the City of Derby Local Plan Review (January 2006) which together seek to secure high-quality, well-designed development that creates a pleasant environment and provides a good standard of amenity. However, I do not find any particular conflict with Policy CP4 of the [name] as this appears to primarily relate to matters of character and context.

I have also had due regard to paragraphs 135 and 139 of the National Planning Policy Framework (the Framework) and Section H of the National Design Guide 2019 which collectively aim to ensure that development promotes health and well-being and delivers a high standard of amenity for future users including well-designed homes with a good standard and quality of internal space. These considerations add to my conclusions in this respect.

Each studio would meet or exceed the minimum floorspace standards set out in the Council’s guidance, and in the absence of any meaningful communal space, beyond 3 small kitchens, the appellant proposes the use of ‘Murphy beds’ to enable sufficient in-room living and dining areas. However, this would have no effect on the provision of separate communal space. Furthermore, such an arrangement could not reasonably be secured or retained by condition, and the use of fold-away beds would not be enforceable in practice. This would therefore fail to meet the tests set out in the Framework and Planning Practice Guidance such that this has not been determinative in my decision.

The appellant refers to appeal decision APP/C1055/W/24/3347844, suggesting it is comparable due to the reduction of communal space to create an additional bedroom within a large HMO. However, I do not find the circumstances directly comparable. In that case, the internal facilities within rooms differed and 2 sufficiently sized communal areas remained available for shared use. In contrast, I find that the communal kitchens in the current appeal proposal would be inadequate for the number of occupiers. In any event, my conclusions are based on the evidence before me.

The appeal property lies within the [address] Conservation Area, which encompasses [address] and complementary parts of [address], which was developed in the mid-1870’s to provide good “villa residences”. The Conservation Areas recognises the historic and architectural interest of the streets. In accordance with the statutory duty set out in Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, I have paid special attention to preserving or enhancing the character or appearance of the conservation area. No external alterations are proposed and given the former use of the building as offices, meeting rooms and general head quarter facilities for [name] and Guides, in this case the impact on the surrounding conservation area would be neutral. Furthermore, the Council has raised no concerns with regard to the impact on heritage assets. I therefore conclude that the proposed development would preserve the character and appearance of the conservation area.

The Council confirm that it cannot demonstrate a 5-year supply of deliverable housing sites, with a confirmed current supply of 2.7 years and thus a significant shortfall in the supply of housing land.

Therefore, the presumption in favour of sustainable development as contained within paragraph 11d) of the Framework is engaged. This requires that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole having particular regard to key policies.

I have found that the scheme would result in unacceptable living conditions for future occupiers. The key policy at paragraph 135 of the Framework requires development to create places with a high standard of amenity for future users. Therefore, the conflict with [name] CP3 and Local Plan Review Policies GD5 and H13 carries significant weight in my decision.

The proposed HMO would contribute 12 studios to the area’s housing supply, through efficient use of an existing building in an accessible location which would help to support the regeneration and future vitality of the city centre. I am also mindful that a similar scale of benefits would be achieved through implementation of the extant planning permission2. Reflecting the scale of the development and its sustainable location, I therefore afford moderate weight to the scheme’s benefits.

The adverse impacts of the proposal would therefore significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole.

Drawing the above together, the proposal would not represent sustainable development within the terms of the Framework. The proposal would conflict with the development plan as a whole and there are no other considerations, including the Framework, that outweigh this conflict.

For the reasons given above, I conclude that the appeal should be dismissed.