Erection of part two storey, part single storey extension to rear to form 1no. self-contained 5-bed house in multiple occupation (C4) to 1st and 2nd Floor and additional retail office, storage and welfare facilities to ground floor.
Minutes:
The Planning Officer, LD noted the application site was located within the market place in the centre of Durham and referred to aerial photographs and plan of the area. He noted there would be no alterations to the existing frontage or access points and that there were already a number of existing residential units within the building, with the application seeking to add additional units. He explained that there was an existing rear, 20th Century extension and derelict garage block, with redevelopment taking place under permission from a previous scheme to redevelop the rear and that development would serve to screen the application site. Members noted the view of the roofline as viewed from Millburngate Bridge and were referred to proposed layout plans.
In reference to statutory responses, the Planning Officer, LD noted that the City of Durham Parish Council had submitted objections to the applications, and while had been included within the public responses section of the report in error, rather than within the statutory responses, that error had not prejudiced their submission. He explained the City of Durham Parish Council submitted further objections to the application following the publication of the Committee report, with further detailed comments in relation to the County Durham Plan (CDP) and student accommodation policies.
The Planning Officer, LD noted no objections to the application from technical consultees, subject to appropriate conditions. In terms of public responses, he noted objections from the Durham World Heritage Centre Coordinator and the City of Durham Trust. He explained they related to the impact on the World Heritage Site (WHS) and the poor appearance of the design. It was added that a further submission had been received from the City of Durham Trust prior to the meeting, adding further details to their objections to the application, albeit not new grounds for objection, and they were not considered to have altered the Officer recommendation.
In relation to the principle of the design, it was noted the Council was in a transitional period in terms of the emerging CDP, with significant weight being able to be afforded to it, however, the saved Local Plans were noted as still being the starting point for consideration of planning applications. The Planning Officer, LD noted that City of Durham Local Plan policies H8 and H9 were relevant to the principle of whether student accommodation was acceptable in the proposed location, with policy H8 permitting the use of upper floors of commercial units, provided they do not have a detrimental impact on the function, use, character and appearance of an area, and with the extension being commensurate with the host building. He added it was felt that the proposed development was in line with this policy. It was noted that policy H9 related to houses in multiply occupation (HMOs) in the context of sub-division or conversion existing dwellings and permitted the use as HMO provided the use does not impact the amenity and character of the area. As the upper floors were already in use as an HMO it was not considered that policy H9 was wholly relevant, although it was not considered that the proposal would have a detrimental impact upon amenity or character an as such have been acceptable in terms of policy H9.
The Planning Officer, LD noted the Interim Policy on Student Accommodation was relevant, however, carried less weight than the saved policies within the City of Durham Local Plan, and had been given similar weight to supplementary planning documents in the past by Planning Inspectors. He added that records showed that 66.7 percent of properties within 100 metres of the application were student lets, greater than the 10 percent set out within the Interim Policy on Student Accommodation, however, as this was within the commercial heart of the city and was on the upper floor of a commercial unit, it was not felt that there would be fundamental or unacceptable impact from the proposals on the character of the surrounding area. He noted that, in light of various planning appeal decisions, Planning Inspectors had noted concentrations of 61.8 percent or above was deemed to be the level whereby an area was already imbalanced and therefore these figure was adopted by the Local Planning Authority as the upper threshold by which further student accommodation would not create further detrimental harm in line with point e) of the Interim Policy.
The Planning Officer, LD noted Officers were aware of the recent appeal decision where and Inspector dismissed an appeal where there was a figure of 68.9 percent student properties within 100 metres, however, the 61.8 percent threshold was accepted following numerous appeals decisions.
He added that the CDP was at an advanced stage and policies could therefore be afforded significant weight, with policy 16 being relevant in terms of student accommodation. He noted it was similar to the Interim Policy in terms of the 10 percent threshold, however, it had an upper threshold of 90 percent, together with situational based exemptions for proposals where commercial uses were prominent. The Planning Officer, LD noted that while figure was above the 10 percent threshold and lower than the 90 percent upper threshold, the property was in the commercial heart of the city and therefore policy 16 would support student accommodation proposals within the city centre where non-residential uses were dominant. He added that the proposals to upper floors above retail would not impact the amenity or character of the area and therefore was acceptable in line with policy 16.
In terms of the impact on designated and non-designated heritage assets, the Planning Officer, LD explained that these related to the WHS and listed building and were detailed within the Committee report, with policies E21, E22 and E23 of the draft City of Durham Local Plan, policy H2 of the City of Durham Neighbourhood Plan and policy 45 of the emerging CDP all noting that new developments require the proposals to reserve, sustain or enhance the heritage assets. He added that the Council’s Design and Conservation Team had carefully considered the proposals and concluded the extension would not have a detrimental impact on the significance of the listed building nor harm the character, appearance of significance of the Conservation Area or the setting of the WHS and the adjacent assets.
The Planning Officer, LD noted the variation in design within the area and added that the proposals were not felt to be appear incongruent with the existing setting. He added that when viewed from Millburngate Bridge, the extension would not be visible due to the existing built environment and therefore would not have an impact upon the view towards the WHS.
In respect of the impact on residential development, the Planning Officer, LD explained it was not felt the proposals represented any detrimental impact due to separation distances and additionally there were no highway safety concerns. He noted that Ecology noted no objections subject to a condition relating to bats and all other issues could also be mitigated through condition. He concluded by noting that the proposals were felt to be in line the saved, interim and emerging policies, did not have a detrimental impact upon the WHS, Conservation Area or Listed Building and protected residential amenity of existing and future occupiers and therefore were recommended for approval, subject to the conditions set out within the report.
The Chair thanked the Planning Officer, LD and noted that Parish Councillor Roger Cornwell, representing the City of Durham Parish Council, was in attendance to speak in objection to the applications.
Parish Councillor R Cornwell thanked the Chair and Committee and explained that it was a time of transition, with the CDP being considered by Cabinet tomorrow and noted that, barring something extraordinary, the CDP would be recommended for adoption to the full Council a week later. He noted that adoption would happen immediately and that from 21 October the CDP would be “the only game in town”. He added that the new Plan therefore had very considerable weight and Committee had to decide how much weight to give to it, and how much weight to give to the Saved Policies of the City of Durham Local Plan, which we would soon be bidding farewell to. He noted that fortunately both plans should, in the view of the Parish Council, lead Committee to the same conclusion, to refuse the two linked Planning Applications.
Parish Councillor R Cornwell noted there were two grounds for the Parish’s opposition: the level of student accommodation; and the impact on the WHS. He added that both the Interim Policy on Student Accommodation and CDP policy 16.3 agree in that a change of use to a student HMO would not be permitted if the percentage of properties benefiting from student exemption was more than 10 percent. He noted in this case the figure was 66.7 percent, almost spot on two-thirds. He added that both policies had an escape clause if the level of student properties was so high that the conversion of further properties would not cause any further harm, with the difference being that the Interim Policy did not put a figure on this and it had been left to a series of appeals where different Inspectors had allowed or disallowed various figures; with the new CDP setting it at 90 percent.
Parish Councillor R Cornwell noted surprise in reading the Officer’s report, with the sentence “Inspectors have indicated that a concentration of 61.8 percent or above is deemed to be the point at which an area is already imbalanced”. He noted Committee may well recall that it had considered that argument back in January in a case at 29 Lawson Terrace. In that instance the HMO percentage was 68.9 percent, slightly above that applying to the application before Members, and Committee refused that previous application. He added that Committee’s decision was upheld at appeal and in the current case, the HMO percentage was 66.7%, one-third of the relevant properties not let to students. He explained that the 29 properties at Clements Wharf, Back Silver Street, were between 50 and 75 metres from the application site and would be affected by the development. He noted the view of the Parish Council was you could not say that a site where one-third of the properties were not let to students was beyond saving.
Parish Councillor R Cornwell explained that Inspectors’ decisions would vary according to the circumstances of individual cases and it was to counter that uncertainty that clause (h) of CDP policy quantifies the level at 90 percent. The reason for the modification required by the Inspector was “To make the policy effective, by quantifying the point at which an exception to the 10 percent threshold can be considered alongside other factors in the policy”.
He noted that the Interim Policy had a standing less than that of the outgoing Local Plan and Planning Inspectors had said that its weight was akin to that of a Supplementary Planning Document. He added that the view of the Parish Council was that the certainty of the CDP, and the fact that its full adoption was only eight days away, outweighed the Interim Policy. He noted that the Committee’s reason for refusal would be Policy 16.3 of the CDP, with two alternative approaches but with both leading to refusal.
In reference to the impact that the development would have on the WHS, Parish Councillor R Cornwell noted Mr Michael Hurlow would be speaking in objection and was a qualified Landscape Architect, a specialist in historic buildings and could speak better as regards those matters than he could. He concluded by noting the City of Durham Neighbourhood Plan had relevant policies to consider, including H1, H2, H4 and D6 adding as it had a decision notice issued it carried almost as much weight as if it had been to referendum.
The Chair thanked Parish Councillor R Cornwell and asked Councillor R Ormerod, Local Member, to speak in relation to the application.
Councillor R Ormerod thanked the Chair and Committee for the opportunity to speak and noted he had requested the application be considered by Committee some time ago. He added that he was glad that he had made the request as he felt it was right the issues were aired in public and that the issues that Parish Councillor R Cornwell had mentioned were heard. He noted his main concern related to the views of the WHS from Riverside Walk, noting he was very concerned as regards an adverse impact, having only recently got the riverside back for use by the people of Durham, providing a splendid place from which to view the WHS. He reiterated his concern that the applications would not improve that view and could quite possibly be detrimental to that view.
The Chair thanked Councillor R Ormerod and asked Mr Michael Hurlow, representing the City of Durham Trust to speak in objection to the application.
Mr M Hurlow thanked the Chair and Committee and noted he was a Trustee with the City of Durham Trust and was speaking in relation to the Trust’s objection based on negative impact on the panoramic view of the WHS and Conservation Area and setting of a listed building. He added the Trust supported the Parish Council’s objection relating to student accommodation.
Mr M Hurlow explained that the frontage and rear of the building already showed signs of poor maintenance, as evidenced from the photographs within the Officer’s presentation, and had one of the worst shopfronts within the Market Place, being very discordant. He added the maintenance and painting of the rear and upper floors was not very good with two different sorts of discordant windows and therefore it was not showing very well at the present time. He explained that the condition of the rear area was an eyesore, and the approval for the lower development was granted in 2015 and the partial demolition of the garage had made the situation a lot worse and therefore there may be a long time with a clear view of the proposed development. He noted that the trees that currently soften the view were at threat due to their proximity to the series of retaining walls and terraces.
Mr M Hurlow explained that the buildings on historic streets often were double frontage with care taken of rear facades facing river, adding the two adjacent buildings show care in design with new extensions to Lloyds and WH Smiths being appropriate and well detailed, contrasting with the existing extension on the application building. He noted the existing extensions were very basic, with the Council’s Design and Conservation Officer describing it as “of limited interest that does not contribute in a particularly positive fashion”. He added that the Trust considered the extensions as being negative and felt that the Officer was struggling to justify something that was already poor.
Mr M Hurlow referred to the importance of the building, where it sat on the skyline, with the context of adjacent buildings within the panoramic views along the riverbanks and up to the WHS. He noted it was not yet apparent how that would be obscured or not from Back Silver Street, it already having a negative impact and with the relevant sections through and views not yet known. He added there were concerns as regards the WHS Statement of Outstanding Universal Value (SOUV) which dealt with integrity, authenticity and protection. He noted concerns from ICOMOS, advisers to UNESCO the organisation that looks after World Heritage Sites, in terms of the potential impact of development on the WHS in Durham and that the cumulative impact of smaller developments did add up and registered with other negative impacts.
Mr M Hurlow noted the proposed extension followed the same design style as the existing extension, which itself was considered to be poor.
He added this would be in an uncomfortable relationship in the skyline with the two adjacent, slightly better extensions. increasing its current negative impact. He noted the Trust felt it had no option other than to object and that objections were supported by failures against new CDP, Neighbourhood Plan policies, as well as previous Local Plan saved policies: CDP 45 and 46; Neighbourhood Plan S1, H1 and H2; and saved Local Plan policies E3, E6 and E21, E22 and E23. Mr M Hurlow concluded by noting that it was possible to imagine extensions adding positively, however it would need to be of considerable better design than the current proposals which were more typical of an extension to a smaller terrace property for student accommodation use.
The Chair thanked Mr Michael Hurlow and asked the Senior Committee Services Officer, Ian Croft to read out a statement on behalf of the applicant, Mr Terry Palmer, who was unable to attend Committee.
“The proposed extension provides more useable retail space for storage and welfare facilities, compared to the awkward series of small spaces contained within the upper floors of the building. The additional student accommodation is simply an extension to the current accommodation which covers all upper floors of the building.
With regards to the objections raised regarding the negative impact on the World Heritage Site, we would point out that the site to the rear of Numbers 19-23 Market Place is the subject of a Planning Permission for a 53 bed, 5 storey Student accommodation block, which will completely obstruct any views to the rear extension to Number 21 Market Place”.
The Chair thanked the Senior Committee Services Officer and asked the Planning Officer, LD to respond to the points raised by the speakers.
The Planning Officer, LD noted Councillor R Ormerod had referred to the time taken for the matter to come before Committee and explained that the requisite bat surveys had to be carried out over spring/summer period. He added that in response to points raised by Parish Councillor R Cornwell, paragraph 65 of the report set out the exemptions in terms of student accommodation, namely paragraph 5.170 of the support text to policy 16 of the CDP in respect of upper floors above retail properties. In respect of the comments from Mr M Hurlow, he noted works to the rear relating to the previously approved scheme had commenced and were being monitored in terms of compliance.
The Design and Conservation Officer, Lee Hall referred Members to the photograph of the rear of the property as viewed from Riverside Walk, as shown within the Case Officer’s presentation.
He explained that having attended the area the view within the Officer’s presentation was the only one in which the site could be viewed in relation to the WHS with a distance of around 115 metres between the application site and the WHS. He noted trees in between and a lot of existing built development. He added the application was within a dense area of back land development, mainly twentieth century, that cascaded down to the riverside. It was explained that the developments were fragmented and varied in terms of scale, massing, design and materials, albeit with some cohesive elements. The Design and Conservation Officer noted Mr M Hurlow’s statement that some of the extensions were better than others. He added that within his original comments on the applications, while he had not stated that the existing extension was positive, he noted that did not mean it was particularly negative, rather he felt it sat more neutrally within the view. He added that therefore the proposals would increase the scale and massing, however, would not be an excessive increase and would not automatically draw undue attention or prominence to the extension within that view. He noted that, as Mr M Hurlow had stated, the form and design followed the existing design and therefore Officers’ view was that it would have a neutral impact, conserving and maintaining significance and setting. The Design and Conservation Officer noted the photograph showed that even if the proposals represented an increase in scale they would not challenge or compete for attention with the cathedral or castle and would not look unsightly or detract from the public’s visual experience of the WHS and therefore while the development would impact within its setting, it would not necessarily be a harmful impact. He concluded by noting that outstanding universal value was a key consideration, with the main one being the visual drama of the cathedral and castle and their relationship with the Framwelgate Bridge and the riverside, and that Officers did not feel that the proposal would harm that aspect of the outstanding universal value of the WHS.
The Chair thanked the Officers and asked the Committee for their comments and questions on the applications.
Councillor D Freeman noted he has some concerns in terms of the applications and agreed with comments in respect an existing poor quality extension with the proposals appearing to be adding to the poor quality, not seemingly being fit for Durham City and the WHS, which itself was more visible as a consequence of the now completed works at Riverside Walk. He added he felt the proposals would not enhance the conservation area and in many ways they were detrimental. He noted concerns as regards the trees to the rear of the property which were beneficial in screening the site, and their potential loss.
Councillor D Freeman explained he had not seen evidence that the new 55-bed student development, previously approved, was going to be build and noted it was possible the whole market for purpose-built student accommodation could collapse with the failure to attract foreign students in years to come to Durham University. He noted that the 10 percent threshold was clearly breached by the application and while the Council had a view of the 61.8 percent figure, a Government Inspector had decided that figure was not suitable for Durham as that figure was now replaced with 90 percent within the new CDP and therefore it was not sustainable for the Council to hide behind the 61.8 percent figure. He noted the recently upheld appeal as mentioned by speakers with a figure of 68.9 percent and therefore felt the Committee did have grounds to refuse the applications in terms of the Interim Policy on Student Accommodation. He added that in claiming the area was commercial did not imply that it did not matter in terms of residents and noted that there was a block of flats to the rear of the applications, Clements Wharf, and people did live there all year round, the area was not just all students. He explained that therefore it was as residential an area as anywhere else within the city and asked for comments from Planning Officers in terms of the weight that could be given to the Neighbourhood Plan in decision making for the Committee at today’s meeting.
Councillor M Davinson asked for clarification as regards the trees mentioned by the speakers. He noted he had visited the site previously in connection with the other application mentioned and asked if the Officer could explain if there were any Tree Preservation Orders (TPOs) in place, where the trees were in relation to the application site and noted a more recent site visit may have been of some benefit to Committee, however, understandable in the current climate.
Councillor P Taylor noted he agreed with the comments from speakers as regards the application, adding he was disappointed to see the application and use of the phrase “not necessarily of detrimental impact” and added he wanted no detrimental impact and would want to see the city enhanced and improved by applications. He noted the quality of the view of the WHS and Conservation Area and felt it was not acceptable to permit anything that did not improve or enhance this.
The Planning Officer, LD noted that there were not TPOs in place, however, the trees were protected by virtue of being within the Conservation Area. He added that in granting permission, permission would be granted in terms of the removal of trees as identified to be removed on the plans. Councillor M Davinson asked whether the impact of the development on the roots of the trees had been taken into account.
The Planning Officer, LD noted the relevant parties had been consulted in terms of trees, however, as the trees would be removed a root protection area would not be required. He added colleagues from Ecology had not objected to the removal. The Area Team Leader (Central and East), Sarah Eldridge noted that the plans did not show trees and upon checking the application file, there were no trees identified within the application boundary and therefore no trees that would be influenced or affected by the proposed development. Councillor M Davinson noted some confusion as if there were no trees within the application site, why had speakers mentioned trees as being an issue.
Councillor J Blakey noted upon looking at the application she felt there would be a visual impact and she agreed with the comments of the City of Durham Trust that it would be of a poor quality and development should be highlighting what was within the city, not bringing it down.
The Chair asked if any Member wished to make a proposal in relation to the applications.
Councillor D Freeman moved that the applications be refused as they were contrary to the Interim Policy on Student Accommodation, being above the 10 percent threshold and also taking into account CDP policy 16 in terms of a 90 percent upper threshold. He added he felt the applications were also contrary to saved Local Plan policies E3, E6 and those relating to the Conservation Area, policies 16, 44 and 45 of the CDP and policies H1, H2, H4 and D6 of the city of Durham Neighbourhood Plan.
Councillor P Taylor noted he would second the refusal of the applications adding he felt they were also contrary to saved Local Plan policy H8, character and appearance of the city, noting we should be looking to improve and enhance and make the city look better, not detract with the same old bland facades which he felt would have a detrimental effect.
The Solicitor – Planning and Development noted he would ask the Senior Policy Officer – Spatial Policy, Zoe Lewin to speak as regards clarification in terms of policy, however, he would first note the differences in respect of the Interim Policy on Student Accommodation and policy 16 within the CDP. He explained the main difference brought to Members’ attention was the 90 percent upper threshold within CDP policy 16, and with no specific percentage within the Interim Policy it was therefore a matter of judgement. He added that further to the 90 percent upper threshold, policy 16 of the CDP set out a separate exception in terms commercial use at the ground floor and use for student HMO on the above floors.
He noted that Officers felt that exception was in play and required consideration, rather than just the narrow consideration of whether the saturation point in terms of HMOs had been reached. The Solicitor – Planning and Development noted there was clearly an issue in terms of preserving the character of the heritage asset or not, this being subjective, however, it was the view of the Design and Conservation Officer that it was of neutral impact, though Members were free to take a different view. He added that he had noted the refusal reasons in relation to saved policies, however, he was not comfortable in terms of reliance upon policy 16 of the CDP, specifically criteria (h) as criteria (i) of the same policy would support the applications.
The Senior Policy Officer explained that criteria (i) of policy 16 of the CDP did have supporting text that further explained how that criteria would be applied: “there are some instances where a high proportion of residential properties are exempt from Council Tax charges in a given area because there is a low proportional of other residential uses, and example of this would be in town centre location where other uses are dominant and a small number of Class N exemptions equate to a large proportion. In such circumstances an HMO use may be appropriate, for instance in an upstairs flat above a retail unit. Such an approach would not impact upon the character of residential areas or the amenity of residents”. She noted that explained the relevance of criteria (i) in terms of determining the applications before Committee.
With reference to weight to be afforded to the City of Durham Neighbourhood Plan, the Senior Policy Officer noted that a Decision Statement was issued on 17 August 2020 confirming that the Plan could move to referendum, subject to the plan incorporating recommendations changes set down within the Examiner’s report, and once restrictions relating to COVID 19 were lifted, currently no referendum could take place until May 2021. She added that Planning Policy Guidance had been recently adapted to take into account these restrictions where Local Planning Authorities had issued a Decision Statement detailing its intention to send a Neighbourhood Plan to referendum, noting significant weight could be given to a Neighbourhood Plan, in so far as material to the application. She added that the individual weight given to a part of a Neighbourhood Plan policy depended upon any changes required by the Examiner’s recommendations, in accordance with paragraph 48 of the National Planning Policy Framework (NPPF) as explained within the Officer’s report. The Senior Policy Officer noted that of the Neighbourhood Plan policies quoted, H4 and D2 could be given no weight at this point as the Inspector had requested that those policies be deleted from the Neighbourhood Plan. She reiterated that those issues had been set out within the Officer’s report as part of the decision making.
The Chair asked if Councillors D Freeman and P Taylor wished to make any further comments in terms of their proposal for refusal of the applications.
Councillor P Taylor noted he felt it was an issue of interpretation of policy, and he felt that the application was in a city centre, not a village or hamlet, and residents of a city tended to move around and therefore residents of a city used the whole area of the city and therefore having more students with the area would be detrimental to residents’ amenity. Councillor D Freeman agreed with the comments of Councillor P Taylor and noted residents at Clements Wharf were only metres away from the application site and he felt those residents would be detrimentally affected by the proposed development.
Councillor J Blakey noted she was going to second the proposal for refusal; however, Councillor P Taylor had spoken in support first. She added that in some cases it was good to have a mix of residents and students, though sometimes there was a need for residents to have some space.
The Chair asked the Solicitor – Planning and Development to take the vote. The Solicitor – Planning and Development noted that the proposal was for refusal of the applications, planning permission and listed building consent, noting the reason relating to the impact of HMO would be difficult to sustain in relation to the listed building consent and therefore asked if Committee agreed that would not be a reason to be included on the decision notice relating to the listed building application.
RESOLVED
That the applications be REFUSED as it was considered that the proposed extension would by virtue of its design, scale, and location appear as an incongruous feature that would detract from the setting of a listed building and have a significant detrimental impact on the nearby Heritage Assets resulting in less than substantial harm to a designated heritage asset with no public benefit to outweigh this harm. The proposals were therefore in conflict with Policies E3, E6, E22 and E23 of the City of Durham Local Plan, Emerging County Durham Plan policies 44 and 45, and draft City of Durham Neighbourhood Plan Policies H1 & H2 , Part 16 of the NPPF and sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
And in relation to DM/19/02199/FPA it was considered that the proposed development to create a further C4 HMO unit for student accommodation in an area which does not meet the community balance thresholds as set out in the emerging County Durham Plan and the Interim Policy on Student Accommodation; would therefore result in further imbalance in the community and have a detrimental impact on surrounding residential and visual amenity and character of the area in contravention of Policy H9 and H13 of the City of Durham Local Plan, the Interim Policy on Student Accommodation, emerging Policy 16 of the County Durham Plan and paragraph 127 (f) of the National Planning Policy Framework.
Councillor J Robinson left the meeting at 10.45am
The Chair noted technical difficulties and would therefore suspend the meeting at 10.50am. The Meeting resumed at 11.08am with the Chair noting, as a consequence of the difficulties, application 5c would be taken as the next item.
Supporting documents: