Case Reference: 3337243

Appeal Decision
Site visit made on 15 July 2024
by K Savage BA(Hons) MPlan MRTPI
an Inspector appointed by the Secretary of State
Decision date: 27 August 2024
Appeal Ref: APP/N5660/W/24/3337243
41 Valley Road, Lambeth, London SW16 2XL
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as
amended) against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of the Council of the London
Borough of Lambeth.
• The application reference is 23/03046/FUL.
• The development proposed is change of use from a small house in multiple occupation
(Use Class C4) to a larger house in multiple occupation (Sui generis).
Decision
1. The appeal is allowed and planning permission is granted for change of use
from a small house in multiple occupation (Use Class C4) to a larger house in
multiple occupation (sui generis) at 41 Valley Road, Lambeth, London SW16
2XL, in accordance with the terms of the application, Ref 23/03046/FUL, and
subject to the following conditions:
1) The development hereby permitted shall begin not later than three years
from the date of this decision.
2) The development hereby permitted shall be carried out in accordance
with the following approved plans: Location Plan; 14201-100-01 (Existing
Ground Floor Plan); 14201-100-02 (Existing First Floor Plan); 14191-100-
P01 Rev C (Proposed Ground Floor Plan); 14191-100-P02 Rev B
(Proposed First Floor Plan); 14141-400-P01 (Proposed Bin Store Details).
3) All new external work and finishes and work of making good shall match
the existing adjacent original work in respect of the materials, colour,
texture, profile, and finished appearance, except where indicated
otherwise on the drawings hereby approved.
4) Prior to the first occupation of the development hereby permitted, details
of the provision to be made for cycle parking shall be submitted to and
approved in writing by the Local Planning Authority. The cycle parking
shall thereafter be implemented in full accordance with the approved
details before the use hereby permitted commences and shall thereafter
be retained solely for its designated use.
5) The premises shall only be used as a house in multiple occupation for a
maximum of 8 occupants at any time, with no more than one occupant
per bedroom.
Application for costs
2. An application for an award of costs has been made by [APPELLANT] against the
Council of the London Borough of Lambeth. This is the subject of a separate
decision.
Background and Main Issues
3. The application as made proposes a change of use from a small house in
multiple occupation (HMO) of six occupants within the C4 use class to a large
HMO of eight occupants within the sui generis class.
4. The appellant states that the property was used as a children’s care home since
the 1990s, although an application in 1995 for a lawful development certificate
for this use determined it fell within the C3 use class as a dwellinghouse. It is
indicated that the property was licenced as a 7-room, 10-person HMO between
2017 and 2021. However, the Council assessed the proposal on the basis that
the use of the property as an HMO has not been confirmed as lawful and the
lawful existing use of the property is as a single eight-bedroom dwellinghouse.
5. In May 2023, a lawful development certificate1 was issued confirming that a
proposed change of use from a single dwelling (Use Class C3) to a small HMO
for 6 people (Use Class C4) would not require planning permission. The
appellant states that the change of use has taken place, with evidence provided
including tenancy agreements dating from 2023. The appellant has also
provided a copy of a new HMO licence applied for in March 2023 and issued in
January 2024 for a maximum of 8 people living as eight households.
6. My site visit revealed that the property was being occupied by individuals
within their own rooms, many of which had kitchenettes within them. There
was a communal kitchen to the rear of the ground floor, with a further kitchen
to the front, albeit this was without any appliances at the time. The layout
included bathrooms which appeared to be linked to individual bedrooms, but
were accessed from the communal hallways rather than the bedrooms
themselves. Two rooms were unoccupied at the time of my visit.
7. It is not within the scope of this appeal to formally determine the lawful
existing use of the property. However, my observations on the ground and the
evidence provided by the appellant indicate that the current use of the property
is consistent with the description of development on the application form. Even
if the lawfulness of the current use is not so proven by way of a lawful
development certificate, it is a significant material consideration that the
property can lawfully be used as a Class C4 HMO for up to six residents.
8. Against that background, the main issues are i) the effect of the proposal on
the housing mix of the borough and ii) whether the proposal would adequately
promote sustainable modes of transport.
Reasons
Housing Mix
9. Policy H3 of the Lambeth Local Plan (September 2021) (the LLP) states that
existing self-contained C3 housing will be safeguarded in accordance with
London Plan policy. Exceptionally, the net loss of self-contained residential
accommodation may be acceptable where the proposal is for specialist non-
self-contained accommodation (Use Class C2) to meet an identified local need
in accordance with the requirements of Policy H8 of the London Plan (March
2021) (the LP21). Policy H8 sets out that loss of existing housing should be
1 Council Ref 23/01095/LDCP
replaced by new housing at existing or higher densities with at least the
equivalent level of overall floorspace.
10. Policy H9 of the LLP supports the provision of new HMOs where certain criteria
are met, including that it does not result in the loss of housing suitable for
occupation by families, as defined in Policy H62, and would meet an identified
local need.
11. Taking the appellant’s position that the property is already a Class C4 HMO, the
proposal would accord with Policy H9(i) as no loss of housing suitable for
families would result. The appellant points to Lambeth Strategic Housing
Market Assessment (SHMA) stating that HMOs play a vital role in providing
affordable housing to a wide range of households including young people,
students, low and middle income households as well as new migrants moving
to the borough, and in meeting growing trends for ‘other’ households, including
shared accommodation and single-person households.
12. The supporting text to Policy H9 states that, to demonstrate a local need,
reference should be made to sources including the SHMA 2017, the Lambeth
Housing Strategy and associated Lambeth strategies for individual client
groups; and to Lambeth’s strategy for commissioning accommodation to meet
the needs of specific client groups in the borough. The appellant’s evidence
does not include any reference to these sources, and whilst the SHMA sets out
a general level of support for HMOs, I am not persuaded that this demonstrates
a specific local need as required by Policy H9(ii). As such, there would be
conflict with Policy H9 in this respect.
13. However, it is relevant that the property appeared to be operating as a 6-
person HMO and, given it appeared to be fully occupied, it is meeting a demand
in practical terms. Moreover, the building contains additional rooms not
occupied at the time of my visit and is capable of accommodating two further
occupants through the proposed change of use. A change from a 6-person HMO
to an 8-person HMO would not result in the loss of a family-sized
dwellinghouse. The degree of intensification would also be modest, and no
adverse effects have been alleged by the Council in respect of neighbours’
living conditions or the general character of the area. Nor does the Council
argue that there is, or would be, an overconcentration of HMOs in the area.
14. Consequently, whilst there would be conflict with Policy H9 through a failure to
clearly demonstrate a local need for HMOs, the practical implications of the
change of use would be very modest, with no tangible effect on the overall
housing mix of the area, and no loss of an existing family-sized dwelling, whilst
providing a small, but nonetheless positive increase in single-person
accommodation for which there is a general recognition of value in the LLP.
15. In the alternative position of the Council that the property is still a Class C3
dwellinghouse, there would be conflict with Policies H3 and H8 as a family-sized
dwellinghouse would be lost and not replaced with either equivalent Class C3
floorspace or specialist non-self-contained accommodation (Class C2).
However, the Council, through issuing the LDC in May 2023, accepts that the
loss of the dwellinghouse could be lawfully effected without planning
permission through the change of use to a Class C4 HMO for up to six
2 ‘Housing suitable for occupation by families’ is defined as houses, purpose-built maisonettes and duplex
dwellings with ground-floor access to the rear garden, with three or more bedrooms.
occupants. This fall-back position is a material consideration in this regard
which overcomes the objection in policy terms to the appeal scheme.
16. Therefore, a C4 HMO either has been, or could be, created lawfully and the
further change to an 8-person HMO would have negligible effect on the housing
mix of the area and a small positive increase in HMO provision for single-
person households in the borough. These are significant material considerations
weighing against the identified policy conflicts.
Sustainable Transport
17. The Council’s reason for refusal relates to the failure of the appellant to secure,
via legal agreement, restrictions on occupants obtaining residents’ parking
permits and provision of car club and cycle hire membership for occupants.
Conflict is cited with Policy T1 of the LLP, which in general terms promotes
sustainable patterns of development through minimising the need to travel and
maximising trips by sustainable modes, and Policy T3 which promotes cycling
and provision of infrastructure to improve uptake. However, neither of these
policies set out any specific requirements for development to be permit-free.
Rather, the relevant policy is T6 which requires that development should be
permit-free where the site has a PTAL3 of 4-6 and/or where the development
falls within an existing or planned controlled parking zone (CPZ).
18. Although the site has a low PTAL rating of 1a, indicating poor access to public
transport, it would not be subject to permit-free parking on this basis. The
Council otherwise concedes that the site is not within a CPZ and that parking
cannot therefore be controlled. However, it points to a consultation and
potential introduction of a CPZ in 2023-24, but I have no evidence before me
to confirm that any such consultation has taken place, that a CPZ has been
introduced for the area or even that planning has reached a stage where the
date of the CPZ’s introduction is known. As such, I am not satisfied that the
proposal conflicts with Policy T6(D)(i) or that permit-free development is
necessary on this basis.
19. This aside, there is no detail as to where a permit-free restriction on occupants
would presently have effect, as the location of the nearest CPZ has not been
provided in evidence. Neither is there evidence to demonstrate that parking
stress in the area is at an unsustainable level. Ultimately, the absence of a CPZ
means there is no effective means of control in respect of parking, as
occupants would not require a permit in the first place to park within the
immediate streets. Notably, the Council concedes that the economic
circumstances of occupants of shared accommodation are such that they tend
to be less likely to own or operate a private car, and it accepts that the impact
on localised parking stress would be ‘negligible.’ I concur with this assessment,
noting also that the Council’s argument that the lawful use of the property is as
an 8-person dwelling means that the proposed use would result in little if any
intensification in the overall occupation of the property and, by extension,
levels of car ownership and use.
20. Notwithstanding the low PTAL rating, the site is located on a bus route which
provides convenient access to the wide range of shops and other facilities on
Streatham High Road, an area also walkable within 15 minutes, or around 5
minutes by bicycle. As such, I find that the site is accessible to local facilities by
3 Public Transport Accessibility Level
sustainable modes of transport, and there is little in evidence to suggest
occupants would require high levels of car ownership that would create
significant additional parking pressure in the area.
21. Separately, the Council seeks to secure car club membership and cycle hire
membership for occupants. Policy T6, criterion D(iii) states that development
should make car club membership available to all residents in new residential
development, whilst Policy T3(H) states that a minimum of three years’ free
membership of the Cycle Hire Scheme should be made available for all
residents, regardless of tenure, in new residential developments.
22. New residential development is not clearly defined in the policies and
supporting text put to me, but in this case the building would still be a single
planning unit, involving no new residential units but rather a change in the type
of residential accommodation provided within the building. There would be no
physical extension and occupation is proposed at a level that is no greater than
that argued by the Council to be the lawful use of the building, i.e. an eight
person dwellinghouse.
23. Moreover, the evidence before me does not demonstrate any material harm
would be caused were such requirements not delivered. Whilst car club and
cycle hire membership may provide modest benefits to occupants in terms of a
cost saving, there is nothing before me to indicate that this would lead to a
tangible reduction in private car ownership or usage, particularly given the
Council’s acceptance that this is generally less for occupants of HMOs and my
findings regarding the accessibility of the site to Streatham High Road.
24. It is also relevant that the Council accepts that the property can lawfully be
converted to a six person HMO, which may already have occurred and to which
none of these requirements would apply. As such, it would be onerous to
require the appellant to provide these memberships to all occupants of the
HMO, and I am sceptical as to whether such a planning obligation would be
fairly and reasonably related in scale and kind to the development. Even if
these requirements were sought only in respect of the two additional
occupants, I have doubts as to how these requirements, and indeed any
permit-free restrictions, would be fairly stipulated, particularly in terms of
identifying the occupants to whom they would apply, given they would all
reside in the same building, and how they would be managed in practice given
that HMO occupancy can be more short-term in nature. Therefore, the
particular circumstances of this case are such that I am not persuaded that car
club and cycle hire membership for two additional occupants within the existing
building meet the tests for planning obligations set out in the National Planning
Policy Framework (the Framework).
25. Finally, I saw that there is ample space within the rear garden area to provide
secure cycle parking spaces to LP21 requirements, and a side gate onto Curtis
Field Road to allow for convenient access and egress with bicycles. Details of
the cycle storage could be secured by planning condition, in accordance with
Policy T3 of the LLP.
26. Overall, I am not satisfied that the permit-free restriction sought by the Council
is justified to address a specific planning harm. The absence of a completed
legal agreement to secure car club and cycle hire membership would result in a
degree of conflict with Policies T3 and T6, though the very limited number of
occupants to which these obligations would apply in practical terms, and the
uncertainty as to how they would be legally secured, limits the weight I afford
this harm. Otherwise, I have found that the proposal, through the absence of
off-street parking, the availability of public transport and the site’s proximity to
local facilities, would encourage sustainable modes of transport in accordance
with LPP Policy T1.
Other Matters
27. The Council did not refuse permission in any other respect. The only external
alterations proposed are the provision of a bin store which has not been
opposed. I am satisfied that there would be no adverse effect on the character
and appearance of the area. Nor has the Council found harm in respect of
neighbours’ living conditions, the standard of accommodation to be provided,
fire safety, waste and recycling. On the evidence before me, I have no clear
reasons to conclude differently to the Council in these matters.
Planning Balance
28. The proposal would result in limited conflict with Policies H9 of the LLP in terms
of meeting an identified local need for HMOs and Policies T3 and T6 in terms of
failure to secure car club and cycle hire membership.
29. However, there are several material considerations to weigh against this
conflict. These include the lawfulness of the change of use to a six-person HMO
and the recognised important role of HMOs in providing accommodation for
single people who cannot afford self-contained housing. The additional
occupants would make use of existing rooms in the building and would have
negligible difference in impact on the area’s character, neighbours’ living
conditions and parking pressure. In these respects, the proposal would accord
with the aims of the Framework that developments meet the housing needs of
different groups, make effective use of land and function well and add to the
overall quality of the area. Moreover, notwithstanding its low PTAL rating, I
have found the site to be reasonably accessible to local facilities and public
transport options and the proposal would be in general conformity with the
sustainable travel approach of Policy T1 and the related aims of the
Framework.
30. Overall, I find that the material considerations in this case, taken cumulatively,
would outweigh the identified conflicts with the development plan. Therefore,
they justify a decision being taken other than in accordance with the
development plan.
Conclusion
31. For the reasons set out, the appeal should be allowed, subject to a condition
setting out the approved plans, to provide certainty. A condition requiring
materials to match, in relation to the bin store, is required for a satisfactory
appearance. Details and implementation of cycle storage are required to
support sustainable travel. Finally, it is necessary to specify maximum bedroom
and overall occupancy levels within the HMO to ensure a suitable standard of
accommodation.
K Savage
INSPECTOR


Costs Decision
Site visit made on 15 July 2024
by K Savage BA(Hons) MPlan MRTPI
an Inspector appointed by the Secretary of State
Decision date: 27 August 2024
Costs application in relation to Appeal Ref: APP/N5660/W/24/3337243
41 Valley Road, Lambeth, London SW16 2XL
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by [APPELLANT] for a full award of costs against the Council of
the London Borough of Lambeth.
• The appeal was against the planning permission for change of use from a small house in
multiple occupation (Use Class C4) to a larger house in multiple occupation (Sui
generis).
Decision
1. The application for an award of costs is refused.
Reasons
2. Parties in planning appeals normally meet their own expenses. However, the
Planning Practice Guidance (PPG) advises that costs may be awarded against a
party who has behaved unreasonably and thereby caused the party applying
for costs to incur unnecessary or wasted expense in the appeal process.
3. The applicant’s claims, in brief, are firstly that the Council’s omission of a
reason for refusal relating to internal floor space provision demonstrated it had
assessed an earlier application (Council Ref 23/00198/FUL) incorrectly as there
were no changes made to the internal layout between the two schemes.
Secondly, the Council ignored the applicant’s evidence relating to the
lawfulness of the change of use to a six-person HMO and failed to cooperate by
not seeking further evidence from the applicant. Thirdly, the Council's request
for a Section 106 agreement was unreasonable given the impact on localised
parking stress would be negligible. The applicant also refers to loss of income
from the Council’s decision to refuse the application and subsequent delays in
using the building as intended.
4. The Council states that it explained its reasoning with respect to internal floor
space provision in its officer report, but adds that the alleged inconsistency
relates to a separate planning application and not this appeal. In the second
matter, the Council states that the applicant did not seek pre-application advice
and it determined the application as made within the statutory time limit. The
Council further argues that its requirement for a Section 106 agreement to
secure various obligations was necessary to mitigate transport impacts of the
development and promote sustainable modes of travel, and so was reasonable.
It adds that the applicant’s claim does not clearly set out what costs have been
suffered or how the Council’s behaviour has resulted in these additional costs
being incurred.
5. There was an evident difference between the two applications in that the earlier
one was assessed on the basis of two rooms being double occupancy and those
falling short of the required floor space, whereas under the current proposal,
these rooms were clarified to be single occupancy and therefore in accordance
with minimum space standards. As such, the Council has explained the
difference in its conclusions on this matter, which are reasonable in the
circumstances.
6. On the second matter, it is for the applicant to provide all relevant information
as part of the application documents. I have limited evidence as to the
interaction between the parties during the application process, and therefore it
is not clear whether the Council wilfully ignored attempts by the applicant to
engage with it and to facilitate the applications progress. Ultimately, the
Council is required to make a decision on the application as made, and it did
so, setting out its reasoning in an officer report and reasons for refusal which
referred to relevant development plan documents. The merits of its reasons for
refusal aside, I do not find unreasonable behaviour in the Council's approach.
7. Regarding the Section 106 agreement, the Council's position is understandable
given the approach set out under a number of development plan policies. In
the circumstances of this case, I determined that permit-free parking was not
necessary to make the development acceptable in planning terms, and that the
harm arising from a failure to provide car club and cycle hire membership was
limited, resulting in modest conflict with the relevant development plan
policies. Doubt as to whether the required obligations met the tests for
planning obligations was a further consideration. Whilst I my findings differ
from the Council, it provided evidence to substantiate its position, and given
that it required planning judgement on the facts of the case, which in turn fed
into the further judgement required in the overall planning balance, I do not
regard the Council’s approach as unreasonable.
8. Overall, the planning judgement required to balance the facts of the case
demonstrates that the Council did not refuse development that should clearly
have been permitted. Moreover, given that an appeal was necessary to address
the matters at issue, it follows that the applicant has not been put to wasted
expense in making the appeal.
Conclusion
9. For these reasons, I conclude that unreasonable behaviour resulting in
unnecessary or wasted expense in the appeal process has not been
demonstrated, an award of costs is not justified. No award is therefore made.
K Savage
INSPECTOR