Agenda item

Change of use from C3 (dwellinghouse) to either C3 (dwelling house) or C4 (house of multiple occupation).

The Planning Officer, Lisa Morina, gave a detailed presentation on the report relating to the abovementioned planning 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 for change of use from C3 (dwellinghouse) to either C3 (dwellinghouse) or C4 (house of multiple

occupation) and was recommended for refusal.

The Planning Officer noted the property was a mid-terraced property, set out over three floors, within the viaduct area of Durham city centre.  She explained that the property was within the Conservation Area and was also in an area subject to an Article 4 Direction which operated to remove permitted development rights for changes of use from C3 dwellinghouse to use as a C4 House in Multiple Occupation (HMO).  It was explained that the proposal would allow for the property to have either use, C3 dwellinghouse or C4 HMO over a 10 year period, with the flexibility to change between those uses over the 10 year period without the need for further permission.  The Planning Officer noted the application had been referred to Committee by Councillor L Brown, who considered that Policy 16.3 required clarification in view of the outcome of a recent appeal decision.

Members were referred to photographs of the property and street, and floorplan showing the existing and proposed layouts, with the main dining area proposed to become a bedroom and the existing utility room proposed to be a dining area. 

The Planning Officer noted updates to the National Planning Policy Framework (NPPF), and updated Members as regards the references to paragraphs within the NPPF, namely:

·        Refusal Reason 1, amended from Paragraph 127(f) to read Paragraph 130(f) – also referenced in paragraphs 62 and 68 of the report and within the City of Durham Trust comments at paragraph 35 of the report.

·        Paragraph 70 of the report, NPPF Paragraph 108 changed to 110.

·        Paragraph 73 of the report, NPPF Paragraph 91 changed to 92.

·        Paragraphs 40 of the report, NPPF Paragraph 213 changed to 219.

Members were asked to note that, subsequent to the publication of the Committee report, videos had been submitted by the Applicant in respect of evidence of noise implications.  The Planning Officer noted they had been viewed, however, it had not resulted in a change of recommendation for the application.  She added that one of the videos did show an instance which could be construed as anti-social behaviour, however, it was not felt sufficient to change the recommendation.

In respect of consultation, the Planning Officer noted that there had been no objections from the Highways Section or Environmental Health as regards the application subject to conditions.  She added that the City of Durham Parish Council had objected to the application on the basis of the application being contrary to CDP Policy 16 and as insufficient evidence had been provided in terms of hardship the Applicant was claiming.  It was explained that two letters of objection had been received, together with an objection from the City of Durham Trust. 

It was noted that four letters of support had been received, with a summary of the representations being set out within the report.

The Planning Officer noted that the principle of the development could not be supported as it was contrary to CDP Policy 16 and insufficient information had been received to demonstrate that any of the exception criteria listed in Policy 16 applied.  She noted that the application was considered acceptable in terms of residential amenity and highway safety.  The Planning Officer noted that in respect of other issues, devaluation was not a material planning consideration.

The Planning Officer noted that while the proposals were satisfactory in terms of residential amenity and highway safety, the Applicant had failed to demonstrate compliance with CDP Policy 16, specifically that the percentage of HMOs already present in the area was greater than 10 percent whilst below 90 percent, and that the change of use of an existing C3 dwelling to HMO would add to the imbalance of the existing community towards being dominated by HMOs.  She added that whilst the Applicant’s concerns in relation to the ability of the property to be used for the current permitted use as a C3 dwelling were noted, based on the limited information supporting the application to demonstrate that, Officers considered that the development would present significant conflict with the requirements of Policy 16 of the CDP.  The Planning Officer noted that therefore the recommendation was for refusal.  

The Chair thanked the Planning Officer and asked Parish Councillor S Walker to speak on behalf of the City of Durham Parish Council, in objection to the application.

Parish Councillor S Walker thanked the Committee for the opportunity to speak in relation to the application.  She explained the Parish Council objected to the application and fully supported the Officer’s recommendation to refuse the application without delay.  She noted that the application had been called to Committee because of the dilemma it has caused to the Members of the City of Durham Parish Council and the concerns that it had raised about the future development of the city.  She noted that the overpowering presence of the University in the city centre was taking its toll, with thousands of former residential properties, affordable houses whose families had sustained the city for many generations, had been consumed by landlords and converted into C4 HMOs.  Parish Councillor S Walker noted that those residents that had remained had become marginalised and isolated in streets that had lost their residential identity.  She explained that the Parish Council knew, from the many letters it received, that the conduct of students, with few responsibilities and no viable constraints from the University or the Police, was causing great distress to many of the few remaining residents. 

She noted that to arrest the clear impact that the studentification of the city was having on local residents there was a sting of policies within the CDP and Neighbourhood Plan that had been designed to ensure harmonious and balanced neighbourhoods for the city, as far as that was now possible.  She added that those plans and policies had been hard-won and now could not be forfeit.

Parish Councillor S Walker explained that as the proposals were for the conversion of a C3 dwelling into a C4 HMO, it must be considered under part three of Policy 16 of the CDP.  She noted that part of the policy sought to promote, create and preserve inclusive, mixed and balanced communities and to protect residential amenity.  She added that it made clear that change of use to a C4 HMO would not be permitted if, including the proposed development, there were fewer than 90 percent or greater than 10 percent of the total number of residential units within 100 metres of the application site that were exempt from Council Tax charges.  She noted in this particular case within 100 metres, and including 8 Laburnum Avenue, 72 percent of properties were Class-N exempt student properties.  She added there were 143 properties within 100 metres of the application site, with 102 currently benefiting from Class-N exemption and therefore it was abundantly clear that the application was contrary to Policy 16, as the Officer had rightly highlighted, and must be refused.  She noted that Policy 16 did make exceptions to those measurable criteria and clarifies that a change of use to an HMO would not be resisted if, for instance, there was evidence of unsuccessful active marketing of a property as a class C3 dwelling with at least one recognised Estate Agent, at local market levels over a continuous period of at least 12 months, or where an Applicant can provide evidence that the policy restriction was causing severe personal hardship.  Parish Councillor S Walker noted that in this case the Applicant had only been able to demonstrate that active marketing of the property had begun three months ago and whilst the Applicant had stated that anti-social behaviour relating to nearby students HMOs had created an intolerable situation, the Parish Council did not believe that the evidence that had been brought forward to convince the Committee sufficiently met the requirements as set out in Policy 16, as evidence which confirms policy restriction was causing severe personal hardship.  She noted that advice from the Council’s own Planning Development Manager made it clear that sufficient evidence, as per the terms of the Policy, would constitute something similar to a registered Doctor’s medical note or otherwise, none of which had been provided by the Applicant.

Parish Councillor S Walker noted it was therefore an especially delicate situation and while every application needed to be judged on its own merits, approval of the application, without the necessary evidence to support and exception under Policy 16, would set an extremely dangerous precedent in the city offering landlords and developers alike a loophole that could further exacerbate the issues already described for permanent residents.  She concluded that therefore it was of the upmost importance that the Committee supported its own Officer’s recommendation and refuse the application.

The Chair thanked Parish Councillor S Walker and asked Mr Smith to speak on behalf of the Applicant in support of the application.

Mr Smith explained that Mike and Caroline Costello had lived at 8 Laburnum Avenue for 33 years and had raised four children there.  He noted that the street in 1987 was very different to how it was today and explained that Mr Costello had campaigned tirelessly for the control of HMOs in the area and was now hoist by his own petard.  He noted that the Applicant’s Statement at Appendix 2 to the Design and Access Statement supported the application, however, the Applicant wished to thank the Committee for enabling him to emphasise some key points.

Mr Smith explained that historic, unrelated, uncontrolled HMOs in proximity to the property had eroded the area’s residential amenity, with many of the Applicant’s friends having moved from the street due to the difficulties they had endured.  He added that, for the Applicant, living in the property had become intolerable and regrettably he had decided to move away.  Mr Smith added that it was highly unlikely the Applicant would be able to sell the property for market value for use as a family home, with those enquiring having been investors looking to buy the property to let as an HMO.  He informed Members that there had been absolutely no interest from families, which was unsurprising as Officers set out that 72.7 percent of the residential properties in the area were Council Tax exempt and therefore HMOs.  Mr Smith added that the Applicant’s home was adjacent to HMOs on all sides.

Mr Smith noted that at the Parish Council’s meeting about the application, it appeared that the Parish Council could not support the application under the rigorous application of Policy 16.  He added there did seem to be acknowledgement that the Policy could trap families, like the Applicant’s, in areas where there was already a high percentage of HMOs within a 100 metre radius of a property and where the 90 percent threshold was not exceeded.  He continued that this was why the Applicant felt that the policy had an inherent inflexibility allowing the Council to grant consent for changes to use as an HMO in such circumstances. 

Mr Smith noted that regrettably the Applicant did not have the time or the finances, being 76 years old, to be able to show a full year’s active marketing that he is unable to sell the property as a family home, however, it was clear from the marketing exercise to date that there was no interest whatsoever, at market value or not, to purchase the property as such.  Mr Smith explained that accordingly, it was perfectly reasonable that the Applicant to ask for a change of use for the property to sell as a dual use as a family home or an HMO.

He explained that strategy would give the Applicant the flexibility to sell and also allowed the Council to impose controls that would minimise the potential for proposed use of the property to compound the problems caused by high concentration of HMOs in the area.  Mr Smith noted that was very important to the Applicant to ensure the remaining families’ amenity was not harmed further.  He added that there was no area of the City where the 90 percent threshold of the policy was exceeded.  Mr Smith noted that if the Council robustly defended that threshold without exception, there would be families trapped in areas of high concentration, unable to sell their homes, financially disadvantaged, and where there was severe detriment to everyday family life.

Mr Smith noted Planners had done their duty by following policy to the letter and recommending refusal, and he explained he was in attendance today to ask, on the Applicant’s behalf, the Planning Committee to show some leadership and compassion.  He noted that if Members believed Policy 16 was designed to trap elderly residents in their home against their will and prevent their heirs from collecting their inheritance to the point that those houses degrade to the point of dereliction then they must refuse the application.  He added, however, that he would respectfully request that the Committee could accept that the Council’s HMO policy does not provide exemptions in the commentary, as explained in the supporting documents that would allow it to grant consent, or that the policy was flawed in its drafting and material considerations should dictate that the Council should approve the application as a departure from the Development Plan.

Mr Smith explained that Planners were very concerned about creating precedents, and that was a worry, however there were dozens of people in Durham in a similar position to the Applicant.  He added the policy was flawed, one street judged upon the makeup of others and that in the Applicant’s case a street that did not exist until 10 years ago.  Mr Smith noted that he was not proposing that Members changed the policy, but that each and every similar case comes before Committee for scrutiny.  He added that it was the job of the Committee to see through the charlatans posing as residents and examine the history of those applicants. 

Mr Smith noted many would have as good a case as the Applicant, but none would have better.  He asked that the Committee grant the application, not to create a precedent, but to right a wrong.

The Chair thanked Mr Smith and asked the Committee for their comments and questions.

Councillor K Shaw moved the Officer recommendation for refusal, he was seconded by Councillor E Mavin.

Upon a vote being taken it was:

RESOLVED

That the application be REFUSED.

Councillor D Freeman entered the meeting at 10.10am

Councillor D Freeman in the Chair