Agenda item

Certificate of lawful use application for the change of use of C3 Dwellinghouse to C4 HMO prior to the Article 4 Direction coming into force.

The Area Planning Team Leader (Central and East), Sarah Eldridge, gave a detailed presentation on the report relating to the abovementioned certificate of lawful use application, a copy of which had been circulated (for copy see file of minutes).  Members noted that the written report was supplemented by a visual presentation which included photographs of the site.  The application was a certificate of lawful use application for the change of use of C3 Dwellinghouse to C4 HMO prior to the Article Four Direction coming into force and was recommended for approval.

 

The Area Planning Team Leader noted a few minor corrections to the report, in terms of multiple references to the date of the Article 4 Direction came into effect, she noted that the date was the 17 September 2016, and therefore the 16 September 2016 would be the date by which any use needed to be established to avoid needing planning permission under the Article 4 Direction.  She noted that at paragraph 31 of the report, it should read two tenants moving in on 7 September, not three and consequently at paragraph 31 the reference should be four tenants, not five.  She asked Members to note that reference to statutory declaration by tenants at paragraph 31 was incorrect, rather there were e-mails from tenants included within the Applicant’s statutory declaration.

 

Members were asked to note the application was not a usual type of application, it was for a lawful use certificate and the certificate was not a planning permission and conditions could not be attached.  The Area Planning Team Leader noted that the planning merits of use, including planning policy were not relevant and the issuing of the certificate depended upon the factual evidence about the use, with the responsibility to provide evidence to support the application being on the Applicant.  She noted that if the Local Planning Authority was satisfied, on the balance of probabilities that the appropriate tests had been met, then the Authority must issue a lawful development certificate.

 

The Area Planning Team Leader noted that again the application process differed in that there was no requirement to consult with statutory consultees, however, the Local Planning Authority decided to consult in order to allow any third parties to submit their own evidence relating to the lawfulness of use so that the Local Planning Authority could take that into account when carrying out its assessment.  She noted in response to the consultation an objection had been received from the City of Durham Parish Council, as they had been informed that the property was not occupied until after the Article 4 Direction came into force as students did not move into the property until just before the October Michaelmas term.  She added three letters of objection had been received from neighbouring residents as regards: the property not being occupied until after the Article Four Direction came into force; that the planning permission granted for an extension was for a family home not a change of use to a HMO; there was regular noise disturbance, rubbish issues and unkept properties from nearby HMOs; and the area was over the 10 percent threshold for HMOs as set out in the Interim Policy on Student Accommodation.  She reiterated that the issues and merits of an HMO were not being considered in terms of the application.

 

The Area Planning Team Leader referred to the Applicant’s case, noting they had set out that the use began on 7 September 2016, suppling various evidence principally a sworn declaration, information from tenants, tenancy contracts and a Planning Contravention Notice, the Local Planning Authority having served on the Applicant as part of an investigation into HMO use.  She noted that the Council’s findings were that a planning application for single storey rear extension was granted on 8 June 2016 and a Building Control Notice was completed on 13 December 2016.  It was also noted that the property was currently being used as an HMO and evidence claimed that it had been since before the Article 4 Direction came into effect.  She noted the statutory declaration stated that the property was purchased in December 2015 and furnished and habitable by July 2016.  The Area Planning Team Leader added it was asserted that two tenants had moved in on 6 August 2016 in order to attend pre-season football training and on 7 September 2016 two further tenants moved in and therefore at that point the use class changed to C4, with a fifth tenant moving into the property in October 2016.  She explained that on 2 September 2016, an Officer had attended the property in relation to an enforcement complaint and the extension appeared to be built in accordance with plans and did not appear to be occupied, meaning no material change of use had occurred and there was no breach identified at the time, however, this was prior to 7 September when the Applicant states the property became fully occupied. 

She noted that it was understood that the property had been registered Council Tax exempt under a Class N exemption since 1 July 2016.

 

The Area Planning Team Leader noted that in summary, the Local Planning Authority had no evidence of its own to contradict or undermine the Applicant's evidence and whilst the neighbours have asserted that the C4 use did not commence until October 2016, no substantiated evidence had been submitted to confirm this.  She added that considerable weight must be given to the sworn declaration submitted by with application.  She concluded by noting that taking all submitted evidence into account, on the balance of probabilities the property was brought into use as an HMO property on 7 September 2016 prior to the Article 4 Direction coming into force on 17th September 2016.  On that basis, the Area Planning Team Leader noted it was recommended that a Certificate of Lawfulness of an Existing Use be granted for 11 Mayorswell Close, Durham in respect of the C4 use of the property.

 

The Chair thanked the Area Planning Team Leader for her presentation and noted there were a number of registered speakers.  She asked Parish Councillor Roger Cornwell representing the City of Durham Parish Council to speak in relation to the application, noting he would have some accompanying slide displayed for Members’ information.

 

Parish Councillor R Cornwell thanked the Chair and Committee and noted that this was an extraordinary case, quite unprecedented in his experience of planning applications in the City of Durham, which stretched back more than 20 years.  He noted the Officer’s recommendation was based on documents that were not on the public Planning Portal until yesterday afternoon.  He explained that the Parish Council was only furnished with copies of the missing documents on Tuesday afternoon and Wednesday, with an amended application form only being uploaded yesterday morning.

 

He referred to his first slide which showed the original application form, within Box 7 the Applicant stated, in answer to the question “When was the use or activity begun, or the building works substantially completed?”: 09/12/2015. Parish Councillor R Cornwell noted that was manifestly not true and the Parish Council pointed that out in October. 

 

 

He added that all of the objections from the Parish Council and the neighbours had been based on this misleading information and all of the objections have been uploaded as they were submitted while the supporting information from the Applicant had been withheld till the eve of this hearing, he noted that was simply not fair.

 

He noted that the Parish Council was well aware of the tests to be applied in these cases, having supported the County Council in opposing an earlier Appeal elsewhere in the City.  He added that in that case the Appellant was claiming the C4 use had commenced before the Article 4 Direction came into force.  It was explained that the Inspector dismissed the Appeal and made it clear that the key date was when students took up occupation in the renovated building, not when their leases ran from.

 

At the time the Parish Council lodged its first objection, all the Parish Council knew of the Applicant’s case was that the C4 use was claimed to have begun just two days after the house was purchased.  Parish Councillor R Cornwell explained that neighbours had informed the Parish Council that nobody had moved in and the house had been gutted and reconfigured.  He noted that in that case there was no actual evidence, simply an unsubstantiated assertion on the application form that was clearly wrong.

 

He added that the Parish Council learned that the Officer had asked the neighbours to provide sworn affidavits and with this being unprecedented, in his experience, and such a departure from usual procedures the Parish Council Planning Committee decided to call the application to the County Planning Committee.  He asked was it appropriate for innocent neighbours, faced with an unwelcome proposal next door, to be asked to go to the expense and trouble of making a statutory declaration?

 

Parish Councillor R Cornwell explained that in April of this year the Parish Council investigated further and found an aerial photograph showing building materials piled in the front garden, taken on 6 May 2016, well after the claimed date of 9 December 2015.  He added this was forwarded in a further submission, along with a relevant and local Appeal decision.  He noted that although the Parish Council had learned that there was further material presumed to include sworn statements, it was only on reading the Officer’s report that the Parish Council learned what they were.  The Parish Council then asked that these be made available, ideally by being put on the Planning Portal.  They were e-mailed to the Parish Council on Tuesday afternoon and Wednesday with nine documents amounting to 88 megabytes of data.  Parish Councillor R Cornwell noted the documents included a sworn statement headed Strictly Private and Confidential which had been redacted so he did not know who made it, presumably the Applicant or her partner, with the name of the Solicitor also having been redacted. 

He added he did not know why and highlighted that it was dated 27 November 2019, seven months ago.

 

Parish Councillor R Cornwell noted the key dates claimed in the latest documents had been contradicted by representations from neighbours and he would have liked the opportunity to discuss the latest documents fully with neighbours, but he had not been able to do so in the time available.  He noted that the Committee agenda was published a week in advance for a very good reason.

 

He added that every document in support of the application had either been substituted or uploaded for the first time in the past 24 hours.  He advised Members not to be fooled by the date shown against them of 3 October, that just compounded the matter, if they were available back then why had they been withheld?  Parish Councillor R Cornwell noted that therefore the Parish Council was now asking the Committee to defer a decision on this matter in the interests of fairness.

 

The Chair thanked Parish Councillor R Cornwell and asked Officers to respond to the points raised and whether or not the Committee should proceed in determining the application.

 

The Solicitor – Planning and Development noted that it was acknowledged that the application was not the usual type of application that came before Members and was not to be judged on planning merit, rather the weighing of evidence of fact and the law.  He reiterated that there had been no obligation on the Local Planning Authority to consult on the application, however, the Council had done so in order canvass for third party evidence that may have been relevant in order to be weighed up in the balance.  He added that there was not a requirement to place supporting evidence on the Planning Portal and to be open to public inspection, it was predominantly given to the Council in confidence and when the Parish Council previously requested the evidence the Council had asked the Applicant if they would give consent to release the information and at that point the Applicant did not give the consent to do so.  He added that the reason the information had been released to the Parish Council quite close to the date of the hearing was because the Council was able to do so under slightly different procedures because of the publication of the report, prior to the publication of the report the Council could not release that information.  The Solicitor – Planning and Development noted that in his view, the information within the report which summarised the Applicant’s evidence and that of Objectors and weighs up that evidence was clear enough in order for the Parish Council or a member of the public to understand what the issues were and what information or evidence was relevant. 

 

He noted that accordingly he could not agree with what Parish Councillor R Cornwell said in terms of anyone being prejudiced by the late disclosure of the information, and reiterated that he felt that all the relevant information was contained with the Committee report and he was sure the Parish Council had interactions with the Planning Officer prior to that.  Accordingly, the Solicitor – Planning and Development noted he could not see any reason for determination of the application to be deferred.

 

The Area Planning Team Leader noted that the original application was submitted with a date of December 2015 and then subsequently changed to a date of 27 September 2016 and agreed with Parish Councillor R Cornwell that this had been identified early. 

 

She noted that the original date reflected the date the property had been purchased and the Agent for the Applicant had confirmed that was a mistake and that was only rectified as part of the preparations for Committee in terms of the receipt of an amended application form.  She added that she did not believe that change in date was pivotal in the matter for Committee to consider which was whether the student tenants were in occupation prior to the Article 4 Direction taking effect.

 

The Chair thanked the Officers and asked Mr Norman Holmes and Ms Janet George to speak in objection to the application.

 

Mr N Holmes thanked the Chair and noted that he and Ms J George of 12 Mayorswell Close were also speaking on behalf of Mr Bill Williamson of 10 Mayorswell Close at his request.  He noted that he wished to object to the change of use and noted that he and Ms J George were splitting the allotted time between them.

 

Mr N Holmes noted the Planning Officer, Michelle Hurton had asked that residents offering evidence should swear an affidavit.  He explained that he and Ms J George were both qualified, senior health professionals having worked in the health service for 68 years between them and had been governed by professional scrutiny and criminal record checks throughout.  He added that they were not given to lying, fabricating evidence or behaving dishonestly.  He noted that the onus was on the Applicant to provide clear evidence in support of the application, not Objectors.

 

He explained that the Applicant, until very recently, wrongly claimed that the house was used as an HMO from December 2015, a fact now disproved in an amended form submitted yesterday.  He added that from December 2015 until after the regulation change date, the house was gutted, completely renovated and the ground floor partitioned into three bedrooms.  He noted the single storey side extension needed substantial structural work due to significant subsidence and had detached from the original gable end. 

It was added that the extension ran the entire length and parallel to the gable of 12 Mayorswell Close at less than a metre distance.  Mr N Holmes noted he was very aware of the situation, having went to the extent of lending the workmen some of his tools and knowing the main workmen by name.

 

Mr N Holmes noted that “Bill Free Homes” did not become involved in the management of the property until the second year, 2017, in the first year it was managed by the couple who own it.  He added that he and Ms J George saw no occupation of the house until the 20 September, that was after the regulation change date, apart from one evening when there were some people sitting outside 11 Mayorswell Close. 

He explained that he and Ms J George and had spoken to the workman the following day who told them that the owner was angry, and that the people should not have been there as the property was not ready.

 

Mr N Holmes noted that residents of the cul-de-sac of five houses were all retired, spending their time in the street, no one could occupy a house and not be noticed.  He added they did not observe any occupation of 11 Mayorswell Close other than that mentioned.  He concluded noting residents urged the Planning Committee to reject the application today, adding that the owners of the property could easily and profitably let the house to a family.

 

Ms J George noted that herself and Mr N Holmes had both been qualified and registered health professionals virtually all their lives, working with vulnerable patients, relatives and never once in her entire career had she been asked to swear an affidavit.  She explained that all she could say to the Committee was that due to the proximity of the property herself and Mr N Holmes were aware of any activity in it.  She added they could hear occupants, see and hear if people come and go, notice bins, or cars arriving.  She noted they could hear talking and music from inside the house particularly if a window was open and most definitely from the outside of the house, such as a door shutting or a car pulling up.  She emphasised that they did not see or hear any signs of residential occupation prior to the change date of 17 September 2016.

 

Ms J George explained that her professional codes required her to adhere to high standards both during and outside her work time and she found the request for a sworn affidavit astonishing and replied to the Planning Officer, M Hurton with the following e-mail date 8 November 2019:

 

“Dear Michelle,

 

I am not sure what a sworn affidavit requires but I can absolutely swear that there was no one living in 11 Mayorswell Close from 9.12.15 as stated on the application on the planning portal by the owner. The property was bought then gutted and completely uninhabitable”.

Ms J George noted that to add to dates, during that Spring the owner had requested to come on to her property in order to remove part of a shared fence so he could access his side extension.  She explained that she had told him he would have to wait as there was a Robin nesting on eggs on the fence.  She added that the owner came onto her land and pulled some of the fence panels down in front of her, despite her saying no to him, it happened too quickly to stop him.

 

Ms J George noted the Committee report stated that a Building Officer visited on 2 September and stated that 'the property did not appear to be occupied'. 

She noted this was despite e-mails stating students were in the property in August.  She explained that her and Mr N Holmes were away 7 September to 14 September and she first saw one person only on the 20 September and recorded this in her diary.  She noted that from their return on the 14 September and past the regulation date of the 17September, and despite living so close by, they saw or heard no signs of occupation.  She added she had a diary entry of rendering being done on the 18 September.

 

Ms J George concluded by noting that in the interest of healthy, balanced communities, they would urge you to reject this application and as a city resident she could say that having another registered student HMO would have a detrimental effect on residents of the quiet cul-de-sac.

 

The Chair thanked Mr N Holmes and Ms J George and asked Mr Darren Ridley, Planning Consultant on behalf of the Applicant, to speak in support of the application.

 

Mr D Ridley thanked the Chair for the opportunity to speak on behalf of the Applicant, as his planning consultant, at Committee.  He noted that the Council did not compel the Applicant to make the application through

any enforcement investigation, indeed, an earlier enforcement investigation

into the alleged unauthorised material change of use of the property

concluded that the Applicant lawfully implemented the change to a small

HMO through permitted development rights.

 

He added that the Applicant made the application to get the paperwork in place following the Council’s Article 4 Direction coming into effect such paperwork making conveyancing procedures easier by demonstrating the current use is lawful should the Applicant ever wish to dispose of his interest in the property.  Mr D Ridley noted the Applicant had carefully considered the letters of objection to his application and was mindful that the thrust of the objections related to the planning merits of the use, which were irrelevant to the consideration of this application, as Officers had informed the Committee.

 

 

He noted the views expressed by third parties on the planning merits of the case, or on whether the Applicant has any private rights to carry out the use in question, were irrelevant when determining this application, for instance, considering the development against the thresholds of the interim HMO policy would be wholly improper.

 

Mr D Ridley explained the issue of the certificate relies on factual evidence alone and it was the Applicant’s responsibility to provide the necessary evidence to support the application. Mr D Ridley noted that, in his opinion, the Applicant had discharged his obligations in providing sufficiently precise information that showed the C4 use of the property commenced before the Council’s Article 4 Direction came into effect.

 

Mr D Ridley noted that unlike the Objectors, the Applicant had provided a statutory declaration and was concerned that it was deemed improper to do so.  It was noted the Objectors did not provide any dates to support their assertions and accordingly, as Officers had pointed out, those assertions must carry less weight.

 

He noted the change of use of the dwelling to a Class C4 small HMO did not require the express permission of the Council as Local Planning Authority, the change of use was permitted by the ‘General Permitted Development

Order’ as amended.  He added that Government offers guidance set out in ‘Lawful Development Certificates’ dated 6 March 2014 that guides the Council’s consideration of the application, it stated:

 

‘... if a local planning authority has no evidence itself, nor any from others, to

contradict or otherwise make the Applicant’s version of events less than probable, there is no good reason to refuse the application, provided the

Applicant’s evidence alone is sufficiently precise and unambiguous to justify

the grant of a certificate on the balance of probability’.

 

Mr D Ridley contended the assertions of Objectors, again carrying less weight, did not constitute evidence that made the Applicant’s version of events less than probable.  He added that whether the Applicant was undertaking works in respect to planning or building regulation processes at the property was not a determinant factor in isolation, they would merely provide indications of the Applicant undertaking work at the property and did not provide evidence that the property was unoccupied.

 

Mr D Ridley noted both the Applicant and Officers contend the property was legally brought into use as a small HMO on the 7 September 2016 and before the Article 4 Direction came into effect.  Accordingly, he respectfully suggested that there were no reasonable grounds to refuse the application and on the balance of probability, the test here, a certificate could be granted by the Council.

 

The Chair thanked Mr D Ridley and asked the Solicitor – Planning and Development to respond to the points made by the speakers.

 

The Solicitor – Planning and Development noted it was perhaps useful to explain why the Planning Officer requested that the Objectors to make a statutory declaration or other type of sworn statement as it appeared to have caused some offence and consternation to the Objectors.  He noted he wished to make it clear the Authority was not questioning the integrity of the Objectors, the reason the request for a statutory declaration was made was to put the Objectors’ evidence on a level playing field with the Applicant’s evidence.  He noted these types of application were often accompanied with a sworn statement, usually in the form of a statutory declaration. 

He noted the different terminology used for statements given under oath and reiterated the request for a sworn statement from the Objectors was because without that, the Authority felt that the same weight could not be given to the Objectors’ evidence as to the Applicant’s evidence.

 

The Solicitor – Planning and Development noted the crucial issue as to whether the existing use as an HMO was lawful was the date on which that use commenced.  He noted that he believed the Applicant had stated in his evidence that it was commenced on 7 September 2016 and added that the Committee had heard from the Objectors and they had stated at the meeting they had not seen anyone at the premises until 20 September 2016.  He noted that was the conflicting evidence that the Committee must assess and added he was happy to answer any further questions from Members.

 

The Chair thanked the Solicitor – Planning and Development and asked the Committee for their comments and questions.

 

Councillor M Clarke noted it was a difficult application as he had not sat on many planning meetings and from what he read it appeared to be close to making a legal determination.  He found all of the information from the Objectors and Applicant to be very useful and noted that the Objectors were a little bit distracted by the issue of the affidavit.  He noted the Objectors had stated that there was not a specific tenancy so the Article 4 Direction would have come into place prior to any new tenancy starting which would be against the rules.  He noted it was interesting that a tenancy agreement was submitted as part of the evidence, that showed the initial two tenants, there was no subsequent tenancy agreement that would show when the additional tenants took occupancy.  He noted he did not know whether such a tenancy agreement existed and simply had not been submitted, or whether it did not exist, however he felt it was important in determining when the second set of tenant took up occupancy and felt that it would be in place in order to ensure rent would be collected.

 

The Area Planning Team Leader noted that a tenancy agreement would not tell you when a tenant began occupying a property, rather just that they signed the agreement.  However, she noted for clarity that it was a joint tenancy and did form part of the submitted evidence from the Applicant and was signed on 1 July 2016 and ran through until the 30 June the following year.  She noted that for the purposes of lawfulness of use the date those individuals that signed the tenancy agreement took occupation of the property.  She added that what had come through in the evidence from the Applicant was that two individuals took occupancy from 6 August 2016 and a further two from 7 September 2016, the fifth individual moving in on an unspecified date in October 2016. 

 

The Area Planning Team Leader noted that the crux date was when the third and fourth tenants moved in, which the Applicant told the Authority in their statutory declaration was 7 September 2016.

 

Councillor A Gardner noted he had a query as regards residential occupancy.  He explained that in his experience students looked for properties around Michaelmas term and sign contracts in Epiphany, shortly after Christmas, in January/February.  He noted students would normally have keys in July, as stated by the Applicant, and students could often take up sports training and ambassador roles from August/September so again, in line with what the Applicant had stated.  He asked the Solicitor – Planning and Development when occupancy began, was it when the tenant was in receipt of keys, was it from moving their belongings into the property or was it from the time the tenants opened the door an began staying at the property.  He felt if this could be clarified it would help Members to be able to look at the balance of probability and come to a conclusion, noting currently he felt on balance the evidence was in line with what he understood as the normal student lifestyle.

 

The Solicitor – Planning and Development noted that it was physically occupancy that mattered so it was from when the students actually move in and start living in the property, it’s not from when they simply moved some belongings in, they must be living at the property.

 

Councillor P Taylor noted he was uncomfortable in respect the application and felt there were legal matters he did not feel qualified to speak upon.  He understood the position of the Applicant, wishing to avoid the Article 4 Direction and the Objectors in not wanting the situation in its entirety.  He asked if it was beyond the realms of possibility to get the students tenants themselves to give a statement.  The Solicitor – Planning and Development noted that within the Applicant’s sworn evidence there were e-mails from the students and while they were not sworn evidence themselves, it was included in the sworn statement given by the Applicant.  The Chair noted this was set out at paragraph 26 to the report. 

Councillor P Taylor noted that the extracts from e-mails were not sworn statement from the students themselves.  The Area Planning Team Leader noted it was a tricky point and the students themselves were tenants four years prior and likely had long since left Durham, and it was not possible to compel them to sign sworn declarations and it would boil down to the weight of the evidence that was before Committee, which was heavily weighted towards the Applicant in the form of a sworn declaration with slightly more vague evidence from Objectors, not been submitted in previous written form, which referring to 20 September 2016, though was still non-specific as regards the number of tenants that might have been in occupancy on that date.

 

The Solicitor – Planning and Development noted that the Council’s assessment was that it wasn’t necessary for the students to sign sworn statements, rather the Applicant had made a sworn declaration as to the date the tenants moved in so that was the key piece of evidence, with the e-mails from the tenants supplied as corroboration for his statement.

 

Councillor M Clarke as for clarification as regards what classed as moving into a property as there appeared to be a large grey area and he noted he felt nervous that voting in one particular way would be effectively telling the other side that they were not correct in what they were stating.  The Chair noted this had been addressed, however, the Solicitor – Planning and Development reiterated that while it was not an exact science, in his opinion it was from when the students actually moved in and started living in the property, taking their meals in the property and sleeping at the property.  He added there may be cases where that could be temporary, however, from the evidence supplied it appeared that occupancy was taken up on a permanent basis.  The Area Planning Team Leader noted that the sworn declaration from the Applicant stated as regards 7 September 2016 that “they could attest that the house was occupied in the sense that four tenants were eating, sleeping, washing and living at the property”.  She noted that was not simply the tenants having said they had moved in; it was Applicant stating they had witnessed the tenants living at the property.

 

Councillor A Gardner reiterated his experience in terms of working at St. Mary’s College and noted he felt on the balance of probabilities that the statement by the Applicant was probably correct and, while he had sympathy for the neighbours, he would move approval of the application.

 

Councillor P Taylor noted he was struggling with “he said/she said” and asked if there was any evidence of payment of rent. 

 

 

 

The Area Planning Team Leader noted she did not believe such evidence of deposits of funds in bank accounts had been received, however, there had been sight of tenancy agreements that would put contractual obligations on the tenants to pay their rent, though again a moot point in terms of when the tenants physically moved into the property.

 

Councillor D Freeman noted he felt very similar to Councillor P Taylor in that the Committee was having to make a judgement on two parties that effectively stating two different things.  He added that the tenancy agreement did not help as it was prior to occupation.  He noted the application was within his Electoral Division and he felt on the balance of probability that neighbouring residents would know when someone had moved in, and gave the example of the previous two applications where students had been discussed and it seemed unlikely four students could have moved into a property with residents on both sides and those residents having failed to notice they were in the property. 

He noted he felt Members would all feel uncomfortable in making a judgement on what individuals were saying and felt Members should not have been put into the position.

 

The Chair asked if there was any seconder for the motion put by Councillor A Gardner.

 

Councillor A Laing noted she had listened the Solicitor – Planning and Development and his clarification on the points raised and therefore would second the motion for approval.  Councillor M Davinson noted he would agree, based upon the hierarchy of the evidence provided.

 

Councillor P Taylor noted he felt very uncomfortable and asked what the legal position would be if the Committee to go against the recommendation and how the Applicant would then challenge the decision.  The Solicitor – Planning and Development noted it was a difficult judgement on competing evidence.  He added that clearly Officers given the sworn evidence more weight that than provided by Objectors.  He noted options would be to accept the recommendations and issue the certificate; prefer the evidence of the Objectors and refuse; or if Members felt so unsure about the evidence that the Applicant had failed to discharge the burden of proof then again this would be a refusal.  He noted another option would be to defer, as suggested by the City of Durham Parish Council, however, he did not see what could be achieved in terms of gathering any additional evidence.  He noted there was a right of appeal, similar to that for planning applications with a similar costs regime.  He noted that he felt the Council would have a reasonable chance of defending a costs claim, however, that was one consideration and not to be given undue weight as an overriding factor in the determination of the application. 

Councillor P Taylor thanked the Officers for their professional advice and reiterated he felt it was very difficult and he still did not feel qualified, but he would make a decision on the application.  The Solicitor – Planning and Development added that Applicant’s Agent had noted that the appeal of a refusal would be heard at a Hearing or an Inquiry, with an Inquiry enabling the testing of evidence by cross-examination.

 

RESOLVED

 

That the application be APPROVED as on the balance of probability based on the information provided and available to the authority, the occupation of the dwelling as a C4 HMO occurred prior to the Article 4 Direction coming into force and before 16th September 2016 at a time when change of use from C3 dwelling to C4 HMO would have benefitted from Permitted Development rights.  The information provided demonstrates that this use has continued until the current day, thus making the development lawful by virtue of s191B of the Town and Country Planning Act 1990 (as amended).