Agenda item

Variation of condition 10 pursuant to permission DM/20/01107/FPA for the erection of a house in multiple occupation, to allow the first floor en suite window within the north side elevation to be fitted with external opening restrictor (description amended).

The Senior Planning Officer, George Spurgeon 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 the variation of condition 10 pursuant to permission DM/20/01107/FPA for the erection of a house in multiple occupation, to allow the first floor en suite window within the north side elevation to be fitted with external opening restrictor (description amended) was recommended for approval, subject to the conditions as set out in the report.

The Senior Planning Officer noted the original approval was in September 2020, and explained that while the windows in place were obscure glazed, they had been intended to be non-opening and one window overlooking the neighbouring property did open, with a horizontal restrictor bar which prevented opening beyond 10 millimetres.  He noted that Officers felt that the proposals would essentially protect privacy for the neighbouring property to the north, the application was recommended for approval.

The Chair thanked the Senior Planning Officer and asked Parish Councillor Grenville Holland, representing the City of Durham Parish Council to speak in relation to the application.

Parish Councillor G Holland thanked the Chair and Committee and explained that the Parish Council was opposed to this application as it believed that, as a matter of principle, developers cannot treat well-crafted planning conditions as optional extras. 

He noted that the matter began in September 2016 with a proposal to build a large house on the site of a former bungalow and although the Officer recommended approval, Committee had refused that application and at Appeal in March 2017 the Committee’s decision was upheld.

He noted the Inspector's grounds for refusal included "the effect of the proposal on the living conditions of neighbouring residents, with particular reference to outlook, light and privacy".

Parish Councillor G Holland noted that the applicant was undeterred and in April 2020 submitted a proposal for two Houses in Multiple Occupation (HMOs) on this site.  He noted that application was refused, on grounds which included “adversely affecting the amenity that surrounding residents could reasonably expect to enjoy to an unacceptable degree”.  He added that by September 2020 the HMO scheme re-emerged and was narrowly approved in a zoom meeting by Committee, but with a string of important and protective conditions.  He noted that, as the Committee would hear, in the next few years, those conditions were regularly breached and in November 2023 an application to amend one of those conditions was refused.

Undaunted, today there was yet another application, this time seeking to remove Condition 10 which, from the outset, required that within the both north and south side elevations the windows will be, to quote, “non-opening and obscured to level 3 or higher in the Pilkington scale of privacy” and it also required that, to quote, “the windows shall be maintained thereafter in perpetuity”.

Parish Councillor G Holland noted there was no ambiguity in that condition however, according to reports, it had been ignored regularly since it was introduced in September 2020, that being for more than 3 years.

He noted that a local resident, Mrs Helen Clark, would be speaking to Members next and he asked that Councillors listened carefully to what she had to say and the problems that she and others have encountered in the last four years.

He explained that because that important condition was designed to protect and reassure local residents, there was no case whatever to remove it or amend it.  He added that, furthermore, the condition was in place well before this HMO was constructed and its restrictions could have easily been fully integrated during the construction process.  He asked that if, deliberately, they were not, why should the residents now be paying the price.  He also asked why builder could not have just put matters right rather than bothering us yet again in seeking to evade Condition 10. 

Parish Councillor G Holland noted the Committee must not be expected to set aside well-designed planning conditions simply to allow some developer to evade an inconvenient restriction, conditions which he both understood and agreed to almost four years ago and which were well within his power to fulfil at the time.  He added that nor must the Committee be bullied by threats of costs if his demands are not met. 

He noted that using CDP Policy 29 e and f, paragraphs 5.286 and 5.287 alongside the essence of ‘impact’ embedded in Policy 31, and taking into account NPPF Paragraph 59, the Parish Council strongly urged the Committee to reject the application. 

The Chair thanked Parish Councillor G Holland and asked Helen Clark, Local Resident, to speak in relation to the application.

H Clark thanked the Chair and Committee and noted she was sorry that she must attend at Committee and that Members must once more be asked to protect the welfare of her family and close neighbours, whom she was also representing.  She explained she lived next door to the student HMO and strongly objected to the retrospective application to vary the already breached Condition 10.  

She explained that when she moved into her home there was a family bungalow next door, however, now, on the same site, there were two student houses totalling 10 bedrooms.  She noted that Saffron House, a new-build HMO, was very controversial with 47 objections, and was approved at Committee in September 2020 by just a single vote.  She explained it was built in the back garden area, with family homes and private gardens on all sides which meant that it was in a much more sensitive position when it came to overlooking neighbours and being detrimental to their amenity.

H Clark noted that to protect that amenity, the Planning Committee at that time set a number of conditions, including Condition 10, which stated that the first-floor windows on the side elevations are to be “non-opening … in perpetuity”, adding that had been very, very clear.

She noted that, in blatant breach of that condition, opening windows were installed from the outset, with the applicant totally ignoring the Planning Committee’s safeguards.  It was added that when enforcement action was taken, the applicant still did not comply, instead, submitting an application to remove the word “non-opening” from Condition 10.

H Clark noted that application was refused, however, rather than complying at that stage, the applicant disregarded the enforcement notice and left the windows open. 

She explained that once the deadline for compliance passed, the Council indicated that a notice was being drafted for summary prosecution in the Magistrates’ Court for the offence of contravening the breach of condition notice, with £1,000 fine as penalty.

She noted at which point the developer hurriedly submitted the current application, seeking to avoid the consequences of a Magistrates’ penalty for breaches that had been ongoing for almost two years.

H Clark explained that from the viewpoint of a family that was overlooked by a nearby building, there was a big difference between windows that are non-opening in perpetuity and windows that open but with a temporary bar screwed on.  She noted the window on the north side was only three metres from her boundary, at first floor height and had been open, directly overlooking our private garden, significantly spoiling her enjoyment and privacy, and that of her children.  She explained that Condition 10, gave peace of mind that the window would never be opened again and also the assurance of the high standard of amenity required by the national and local planning policies. 

She noted that, as part of this application, the Case Officer chose not to allow a restrictor on the inside because it could easily be unscrewed.  She added that the proposed outside, removeable bar was no different and there was nothing permanent or sturdy about it.  She noted a push from a frustrated student could dislodge it, or by the applicant himself, for he has long been doggedly determined to have open windows.  H Clark explained the applicant could simply unscrew and remove it in just 10 minutes and therefore she had no confidence that it was a permanent feature and therefore it significantly undermined her families’ amenity and Condition 10.

H Clark explained her neighbours shared these concerns due to the long history of breaches associated with the HMO and the ongoing threat that the bar would offer.  She added there was not the time for her to list the catalogue of breaches that the applicant had committed, or to fully explain how the proposal did not comply with current Building Regulations, however, at least seven of the 15 conditions recommended by the Committee had been deliberately breached, many times, showing contempt for the Local Authority and the local community.  She explained that despite this, the applicant suggested that coming to Committee was petty and not an effective use of taxpayers’ money, yet it was the applicant who was forever breaching the conditions, and it was his repeated attempts to erode this Committee’s decisions and therefore it was he who was wasting Members’ time and taxpayers’ money.

H Clark noted that, in summary, Condition 10 required ‘non-opening windows … in perpetuity” and reiterated that could not be clearer and gave peace of mind that a high standard of amenity would be preserved forever, in accordance with national and local planning policy.  She noted that her family and her neighbours were very grateful that the Committee chose to safeguard their amenity in this way.  

She added that the present attempt to set aside that important restriction was unacceptable.  She noted the developer has his student house and that her and her neighbours, just wanted to enjoy a quiet family life with its amenity, security and privacy that Condition 10 was designed to protect from the outset.  She concluded by asking that the Committee refuse the retrospective application.  

The Chair thanked H Clark and asked the Senior Planning Officer to respond to the points raised by the speakers.

The Senior Planning Officer noted that Officers were happy that the outcome of the wording of the new variation and the original condition were comparable, with the window only opening 10 millimetres, with the restrictive horizontal bar in place.  He added should the bar be removed, then planning enforcement could look into the matter.

The Chair thanked that Senior Planning Officer and asked the Committee for their comments and questions.

Councillor J Elmer noted the application was extremely strange, with the original condition 10 being to protect residential amenity.  He added that if the result was the same outcome, then what was the sense in submitting a variation of condition application.  He could only see a difference in that the applicant had breached Condition 10 and therefore he would wish to see that enforced and would propose refusal of the application.  Councillor M Currah seconded the proposal for refusal.

Councillor A Surtees noted that she could not see how anyone could see out of a one-centimetre gaps and suggested the gap would only be sufficient to circulate air.  The Senior Planning Officer noted that was essentially the view of Officers, and that from the exterior one would not be able to tell if the window was in the open or closed position.  He added while it may be disappointing that the original condition had not been adhered too, legislation did allow for such variation of condition applications.

Councillor A Bell noted he felt that the application need not have come to Committee, and he proposed the application be approved.  Councillor D Oliver seconded the proposal.

The Chair asked as regards the refusal reasons from Councillor J Elmer.  Councillor J Elmer noted the risk of impact upon residential amenity and the history of planning breaches.  The Lawyer (Planning and Highways noted that the metal bar was attached to external masonry and would require a ladder in order to be removed and therefore it was inherently unlikely. 

He noted that permanent retention of the bar was part of the new condition and that that would give the Local Authority the tools to enforce should the new condition be breached.  He concluded by noting he did not feel there was a sustainable reason for refusal, however, the decision was for Members.

A motion for refusal was proposed by Councillor J Elmer, seconded by Councillor M Currah and upon a vote being taken the motion was LOST.

A motion for approval was proposed by Councillor A Bell, seconded by Councillor D Oliver and upon a vote being taken it was;

RESOLVED:

That the application be APPROVED, subject to the conditions set out within the report.

Councillor L Brown entered the meeting at 11.41am