Agenda item

Demolition of existing rear extension and erection of two-storey extension at rear and installation of dormer windows in roofspace also to rear to an existing small HMO (use class C4).

The Planning Officer, Lisa Morina, gave a detailed presentation on the report relating to the abovementioned planning applications, copies of which had been circulated (for copy see file of minutes).  Members noted that the written reports were supplemented by a visual presentation which included photographs of the sites. 

 

The applications were for: 17 Providence Row - Demolition of existing rear extension and erection of part single-storey/part two-storey extension at rear and installation of dormer windows in roofspace also to rear to an existing small HMO (use class C4); and 18 Providence Row - Demolition of existing rear extension and erection of two-storey extension at rear and installation of dormer windows in roofspace also to rear to an existing small HMO (use class C4).  It was explained both applications were recommended for approval subject to conditions as set out within the reports.

 

The Planning Officer, LM noted that the applications were not for change of use, the properties already being houses in multiple occupation (HMOs) prior to the Article 4 Direction, the applications were for extensions to the properties.  She explained that there had been no objections to the applications from Durham Constabulary, Environmental Health, Design and Conservation, the Highways Section or the HMO Licensing Team, following discussions as regards the bedroom height of the proposed loft room for 17 Providence Row.  It was added that the Highway Section noted the properties were within a controlled parking zone and no further parking permits would be issued.

 

 

 

 

In respect of public representations, the Planning Officer, LM noted objections to both applications from the City of Durham Parish Council and the City of Durham Trust, with their comments set out within the report and with a representative from the Parish Council being in attendance to speak to Committee.

 

The Planning Officer, LM noted the applications were considered in terms of the saved Local Plan Policies from the City of Durham Local Plan and the National Planning Policy Framework and the Interim Policy of Student Accommodation.  She explained it was not felt the applications would have a detrimental impact upon the area or the street scene, did not represent a massive change to the current situation, and reiterated there were no objections from internal consultees.  The Planning Officer, LM noted there was a slight conflict with the Interim Policy on Student Accommodation, however, the housing mix in the area would not be altered as the properties were already HMOs.  She concluded by noting that on balance the applications were considered to be acceptable and therefore were recommended for approval, subject to the conditions as set out within the report.

 

The Chair thanked the Planning Officer, LM and asked Parish Councillor Grenville Holland to speak on behalf of the City of Durham Parish Council in objection to the applications.

 

Parish Councillor G Holland noted that the two applications were being discussed together and they were similar, involving adjacent properties and the same landlord, and the Parish Council’s objections followed essentially identical paths.  He explained that when urging that an application be refused, the Parish Council were always careful to make sure that the planning grounds for that request were both sound and valid.  He added that yet, there was always the lingering threat of an Appeal and its consequences that was often aired and the Committee, understandably, erred on the side of caution.  Parish Councillor G Holland noted that landlords and developers had very deep pockets and, however merited, would almost certainly call any refusal to Appeal believing that threat alone could normally win their day.

 

Parish Councillor G Holland explained that less than a month ago at the Court of Appeal, and with another Council faced with that very threat, Lord Justice Underhill commented as follows:

 

“It is true that, in the real-world, councillors and officers are bound to be aware that a refusal of planning permission is likely to be appealed and that, win or lose, the process will be expensive in terms both of officer resources and legal costs incurred.”

 

 

Parish Councillor G Holland noted Lord Justice Underhill added:

 

“But that is not the same as allowing the risk of costs associated with defending an adverse decision on appeal to influence them in the exercise of their planning judgement.  That is not legitimate,… and there is a risk of that occurring if officers in their advice express reference to the likely costs consequent on a refusal”.

 

Parish Councillor G Holland noted that Members had all been there and their caution at the probable threat of an appeal, also raised by the Officers, had often conditioned their decision.  He added that the Court of Appeal had now cautioned against such an approach to decision making.

 

In turning to the two applications on Providence Row, Parish Councillor G Holland explained that Durham City Parish Council objected to both of the applications because they contravened both national and local planning policies, as well as the County Council’s own Interim Policy on HMOs.

 

Firstly, he noted that the importance of NPPF Paragraph 8b which described the key social objectives of the planning system as being to support strong, vibrant and healthy communities.  He added that NPPF Paragraph 62 sets the objective of creating mixed and balanced communities; and NPPF Paragraph 192 was designed to create sustainable communities.  Parish Councillor G Holland stated that none of those were mentioned in the Officer’s report and that the Parish Council did not feel the extensions proposed in the two applications achieved the aim of fostering a balanced and mixed community.

 

Parish Councillor G Holland explained that secondly, the County Council’s own carefully drafted Interim Policy, built on the foundations of the NPPF, was clear and was a material consideration, it stating:

 

“In order to promote the creation of sustainable, inclusive and mixed communities and maintain an appropriate housing mix, applications for new build houses in Multiple Occupation (both C4 and sui generis), or extensions that result in additional bed spaces,… will not be permitted if more than 10% of the total number of properties within 100 metres of the application site are already in use as HMOs or student accommodation exempt from council tax charges…”

 

Parish Councillor G Holland referred to the Officer’s report which stated within 100 metres of 17 Providence Row 37.3 percent of the properties were HMOs; whereas next door, at 18 Providence Row, the equivalent number was given as 48.7 percent. 

 

 

He added that either way those numbers exceeded the 10 percent threshold and the applications should be refused because they were contrary to the Interim Policy and therefore the NPPF which underpins this Policy; and the attempt to arbitrarily undermine the threshold within Paragraph 45 of the Officer’s report was unacceptable.

 

Parish Councillor G Holland noted that furthermore it was felt that Paragraph 42 in the Officer’s report was misleading, while accepting that the proposed developments were contrary to the Interim Policy, the paragraph sought to sidestep the contravention by arguing that, although there was an increase in bedrooms, it did not involve the loss of a C3 property.  He explained that the Interim Policy did not sanction that interpretation and it could not be set aside because it happened to be inconvenient.  He added that the policy was about extensions that led to an increase in the number of students in a balanced community and not the number of bedrooms.

 

Parish Councillor G Holland referred to Paragraphs 43 and 44 of the report and noted that the Officer, yet again, trotted out an individual decision by a Planning Inspector relating to an application at 40 Hawthorn Terrace, a decision which was widely believed to be arbitrary and erroneous.  He explained the Parish Council felt that those paragraphs introduced a covert threat that, if the Committee rejected the applications today, a similar decision at Appeal would revisit the Council.  Parish Councillor G Holland asked therefore if he could refer back to the recent guidance from Lord Chief Justice Underhill:

 

“That is not legitimate,…. and there is a risk of that occurring if officers in their advice express reference to the likely costs consequent on a refusal”.

 

Parish Councillor G Holland noted that this, in essence, was the advice the Committee was being given by the Officer in Paragraphs 43, 44 and 45 of the report.  He added it was felt those paragraphs should be disregarded particularly because the deliberations of the Examination in Public were far from complete and the Interim Policy therefore remained material and relevant.  He noted that indeed, the Inspector may choose to strengthen that Policy in his final determination later this year.

 

Parish Councillor G Holland explained that a third point the Parish Council noted was that Saved Policy H9 in the City of Durham Local Plan stated:

 

“The sub-division or conversion of houses for flats, bedsits or for multiple occupation, or proposals to extend or alter properties already in such use will be permitted provided that:

Adequate parking (in accordance with policy T10), privacy and amenity areas are provided or are already in existence; …”.

 

Parish Councillor G Holland noted that condition within H9 was not mentioned in the Officer’s report.  He added there was no parking provision and therefore the applications failed to meet the requirements of Saved Policies H9 and T10 and should be refused.

 

In summary, Parish Councillor G Holland explained it was felt the applications failed the tests set out in the NPPF, the Council’s own carefully drafted Interim Policy, Local Plan Policies H9 and T10, and in one property the room size was inadequate, although the Planning Officer, LM referred to the comments from internal Council Officers within her presentation in relation to this.  For those reasons, the Parish Council believed both applications should be refused.

 

Parish Councillor G Holland noted that until decision makers used the planning policies that were available, policies designed to protect this city, and did so without fear or favour, then we would constantly be revisiting applications that were destined, little by little, to destroy any semblance of a balanced community, and, indeed, any pretence that such a balance could be achieved now or in the future.

 

The Chair thanked Parish Councillor G Holland and asked the Officers for any comments on the points raised.

 

The Principal Planning Officer, Alan Dobie noted that in reference to the comments relating to the Court of Appeal case, he did not accept that Officers either in these cases or any previous ones had explicitly attempted to persuade members to make decisions based on the potential award of costs. However, he felt Officers were obliged to advise members of relevant appeal decisions and to set out, within their reports and advice to Members, the relevant policies and potential implications, though ultimately the decision was for the Committee.  In relation to the Interim Policy of Student Accommodation, he noted this had been covered previously at Committee, however, he would advise and reiterate that while Officers had tried to control extensions to HMOs via the policy, early decisions by Planning Inspectors had set out that in that respect that policy was in effect a moratorium on extensions and therefore was not in line with Saved Policy H9.  The Principal Planning Officer noted that accordingly Officers had to revise their approach to such HMO applications.  He explained that the Examination in Public of the County Durham Plan (CDP) would cover those issues and from a session in November 2019, the Inspector set an action point for the Council to consider modifying the policy in relation to HMOs and extensions and to take into account during the assessment of such applications the student HMOs near to an application site.  He explained this was an issue being looked at by colleagues within the Policy Team and therefore would be something to be then considered during the consultation on the CDP, however, not given any weight at present.

The Principal Planning Officer noted the two percentages referred to within the reports relating to the student density in respect of the properties were each different and correct.  In reference to comments that the applications were contrary to Saved Policy H9, he reiterated that the Highways Section had advised the applications were within a controlled parking zone and that they felt applications could not be refused on that reason.

 

The Chair asked if Parish Councillor G Holland could give further details as regards the case he referred to within his statement.  The Solicitor – Planning and Development, Neil Carter noted that he would reiterate the comments of the Principal Planning Officer in terms of a duty to state policy advice and give details of previously determined appeals decisions to Committee, with the Committee to then decide upon the application, however if Parish Councillor G Holland could provide further details of the case he was referring to, then he would advise further.  Councillor G Holland  noted that he had not questioned the percentages relating to HMO density for each property, simply he had referred to each percentage separately within his statement.

 

The Chair thanked the Officers for their comments and asked the Committee for their comments and questions on the applications.

 

Councillor J Shuttleworth noted that it appeared to him as if the people of Durham City were sick of HMOs and Paragraph 3 of the reports stated conflict with the Interim Policy on Student Accommodation and asked if the applications could be refused on that basis.  The Solicitor – Planning and Development noted while the applications were in conflict with the Interim Policy, the appeals decisions referred to had shown that the Interim Policy was not in line with Saved Local Plan Policy and therefore the applications should be determined against those Saved Local Plan Policies.

 

Councillor M Wilkes noted he too was sick of HMO applications coming to Committee and referred to the Applicant’s Statement which explained the properties could revert back to family homes in the future, he added he did not see how this would be possible given the number of extensions proposed.  Councillor M Wilkes referred to Saved Policy H13, relating to the amenity of residents.  He noted that the extensions would take up the external amenity space linked to the properties and added that given the likely number of students in the property that there would be at least eight waste and recycling bins between the two properties.  Given that, Councillor M Wilkes asked what amenity space would remain and what was considered reasonable in terms of such external amenity space.  The Planning Officer, LM noted space left by the rear extensions to the properties, albeit with 17 Providence Row also having the proposed single storey extension in addition. 

Councillor M Wilkes asked if that was effectively no change in terms of extension space for one property and a small change for the other property. 

 

The Principal Planning Officer explained that he was not sure precisely, though the change was slight, adding there was not a measurable standard rather a judgement was made in terms of each application being considered and in the case of these applications the amount was considered to be sufficient.  Councillor M Wilkes noted he disagreed with that assessment and felt it represented a very small amount of external amenity space for 12 people and that it was not sufficient given the amount of bins as he mentioned previously.  Councillor M Wilkes explained that he considered the lack of parking to be an issue and that simply stating it was not a problem as the area was a controlled parking zone was not addressing the issue.  He added that the percentages of HMOs within 100 metres of the properties was around 37 and 48 percent, both in excess on the ten percent set out in the Interim Policy.  Councillor M Wilkes explained on the basis of the applications representing overdevelopment, being contrary to Saved Policy H9 in terms of parking, H13 in terms of adverse effect on amenity for residents and the surrounding area he would be minded not to support the applications.

 

Councillor P Taylor wondered if Lord Justice Underhill had attended the last meeting of the Committee, as what the Lord Justice had stated in his ruling was almost word-for-word what Councillor P Taylor had said.  Councillor P Taylor reiterated that Durham City was not a business opportunity for landlords to create HMOs for students, the City was for people.  He added that Members were elected to represent and protect people, including the people living in Durham City.  He echoed comments from other Members that people were ‘sick to the back teeth’ of having no power to do anything in the face of such applications and then to be told the risk of a decision being overturned at appeal.  Councillor P Taylor noted he felt Councillor M Wilkes was quite right in terms of the applications.  However, he added that the Officer’s reports and the comments from the Principal Planning Officer were quite right too in terms of the policies, appeal decisions and issues faced.  Councillor P Taylor noted there was considerable frustration that Members were unable to protect the City.  Councillor M Wilkes noted there was a suite of policies at the disposal of the Committee when looking to determine applications.

 

The Chair asked if any Member wished to make a proposal in relation to the applications.  Councillor M Wilkes suggested that the Committee did have the policies to use and proposed that the two applications be refused as they were contrary to Saved Policies H9 and H13, in terms of a lack of parking and significant impact on residential amenity respectively.  He was seconded by Councillor K Hawley.

 

The Solicitor – Planning and Development noted he would ask if Councillor M Wilkes could expand on the reasons, specifically amplifying upon a “lack of parking”.

 

Councillor M Wilkes noted there was no additional parking while the number of people to occupy the properties would increase, and that given it was a controlled parking zone this was therefore contrary to policy.  The Solicitor – Planning and Development noted that the approach being taken by Councillor M Wilkes was different to that of the Highways Officer in the case of the two applications.  The Solicitor – Planning and Development asked Councillor M Wilkes what he was objecting to in respect of character and appearance.  Councillor M Wilkes noted he felt the applications represented overdevelopment of the terraced houses, with tiny back yards unsuitable for 12 people in two properties.  He added he felt it was contrary to the Article 4 Direction, given the percentages set out within the report.  The Solicitor – Planning and Development asked if it was a lack of remaining amenity space that the Member was objecting to, Councillor M Wilkes confirmed it was.

 

The Planning Officer, LM noted for clarification that the properties were within the controlled parking zone and that no further permits would be issued.  She explained that therefore any parking would be at an on-street parking charge cost and it was therefore felt unlikely that additional cars would pay to park.  Councillor M Wilkes noted there was an increase in the number of people, with no corresponding increase in parking provision.  The Planning Officer, LM reiterated that as there would be no further permits issued, any additional parking would be subject to on-street parking charges and therefore the Highways Section had not objected to the application.

 

Councillor P Taylor explained he disagreed with the point made at Paragraph 70 of the report with the impact upon the area being deemed as acceptable, he would argue it was the opposite with there being an unacceptable impact on the character of the terrace by adding such ‘carbuncles’.

 

5a - In reference to application DM/19/03459/FPA - 17 Providence Row, Durham, DH1 1RS, Councillor M Wilkes proposed the application be refused, he was seconded by Councillor K Hawley, upon a vote being taken it was:

 

RESOLVED

 

That the application be REFUSED as the application was contrary to Saved Local Plan Policies: H9, lack of parking and insufficient amenity space; and H13, adverse effect on character and amenity of the area.

 

5b - In reference to application DM/19/03494/FPA - 18 Providence Row, Durham, DH1 1RS, Councillor M Wilkes proposed the application be refused, he was seconded by Councillor K Hawley, upon a vote being taken it was:

RESOLVED

 

That the application be REFUSED as the application was contrary to Saved Local Plan Policies: H9, lack of parking and insufficient amenity space; and H13, adverse effect on character and amenity of the area.