Case Reference: 3364700

Costs Decision
Site visit made on 17 July 2025
by S Burch BSc MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 27th August 2025
Costs application in relation to Appeal Ref: APP/N5660/W/25/3364700
139 Sherwood Avenue, Lambeth, London, SW16 5EE
• 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 partial award of costs against the Council of the
London Borough of Lambeth.
• The appeal was against the refusal of planning permission for the change of use of existing property
from a small HMO (Use Class C4) to a large house in multiple occupation (HMO) with 10 rooms (sui
generis) involving the erection of a single storey ground floor rear extension. Erection of a rear
dormer roof extension and installation of two rooflight to the front roof slope.
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. Unreasonable behaviour on the part of a local planning authority may include it
making vague, generalised or inaccurate assertions about a proposals impact,
which are unsupported by any objective analysis, preventing or delaying
development which should clearly be permitted, having regard to its accordance
with the development plan, national policy and any other material considerations.
4. The PPG states that awards may be either procedural in regard to behaviour in
relation to completing the appeal process or substantive, which relates to the
planning merits of the appeal.
5. The applicant contends that the Council behaved unreasonably by failing to
consider the lawful fallback position of the property being capable of lawful use as a
small HMO, under Schedule 2, Part 3, Class L of The Town and Country Planning
(General Permitted Development) (England) Order 2015 (as amended) (GDPO).
6. However, the Council clearly accept this position in paragraph 7.4 of its case officer
report. As outlined in my decision, the crux of the issue is that the proposed change
of use to a larger sui generis HMO would remove the flexibility provided by
Schedule 2, Part 3, Class L of the GDPO to change between a C3 single
dwellinghouse and a C4 smaller HMO, thereby resulting in the loss of a property
capable of providing a single dwellinghouse. The refusal reason clearly notes the
flexibilities of Schedule 2, Part 3, Class L of the GDPO, protecting a property
‘capable’ of providing a C3 single dwellinghouse. The Council are objecting to the
loss of a property which could fall either within the C3 or C4 use class. They do not
deny the fallback position and I do not agree that they have acted unreasonably on
this point.
7. Given the above, I do not agree that the Council refused the application on a basis
that was factually incorrect and unsupported by proper evidence or policy
interpretation.
8. My attention is drawn to an allowed award of costs against the London Borough of
Hackney (Ref: APP/U5360/W/24/3352804, dated 24th April 2025). I am however not
satisfied that it is directly comparable to the appeal scheme before me. Firstly, the
referenced appeal was for the change of use from a dwellinghouse to a large seven
bed HMO. Secondly, the first refusal reason in the referenced appeal does not
mention the failure to demonstrate an identified local need. This is a requirement of
Policy H9 of the Lambeth Local Plan 2020-2035 (2021), which the applicant clearly
does not meet. Finally, the referenced appeal relates to a scheme in Hackney and
is based on a different local plan context. Given the above reasons, I am therefore
not satisfied that the circumstances of both appeals are the same.
9. The applicant also references an allowed appeal (Ref: APP/N5660/W/24/3337243,
dated 27th August 2024), suggesting that the Council treated the fallback differently
in this case. However, from the evidence before me it appears that the Council also
refused this scheme for its effect on housing mix. Furthermore, the applicant did not
mention this scheme until final comments stage, after the Council submitted their
statement of case. I am not satisfied that the Council have behaved unreasonably
on this point.
10. In their response to the Council’s costs application rebuttal, the applicant advises
that tenancy agreements and correspondence clarifying the use were provided. As
outlined in my main decision, within the context of an appeal made under section
78 of the Town and Country Planning Act 1990 it is not within my remit to formally
determine whether a particular use has already been established as claimed by the
appellant. However, I note that the tenancy agreements and correspondence were
all dated after the initial application was refused.
Conclusion
11. Based on my reasoning above, I therefore find that unreasonable behaviour
resulting in unnecessary or wasted expense, as described in the Planning Practice
Guidance, has not been demonstrated. For the reasons set out, and having regard
to all other matters raised, an award for costs is therefore not justified.
S Burch -
INSPECTOR


Appeal Decision
Site visit made on 17 July 2025
by S Burch BSc MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 27th August 2025
Appeal Ref: APP/N5660/W/25/3364700
139 Sherwood Avenue, Lambeth, London, SW16 5EE
• 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 Ref is 25/00344/FUL.
• The development proposed is for the change of use of existing property from a small HMO (Use
Class C4) to a large house in multiple occupation (HMO) with 10 rooms (sui generis) involving the
erection of a single storey ground floor rear extension. Erection of a rear dormer roof extension and
installation of two rooflight to the front roof slope.
Decision
1. The appeal is dismissed.
Applications 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.
Preliminary Matters
3. For reasons of clarity, I have used the description of development noted on the
decision notice in the heading above. This also matches the description listed on
the appeal form and the appellant’s statement of case.
4. The description of development refers to the existing property as a small HMO
(Use Class C4). The Council however indicate that no evidence to demonstrate
this existing use has been provided. In any case, within the context of an appeal
made under section 78 of the Town and Country Planning Act 1990 (the Act) it is
not within my remit to formally determine whether a particular use has already
been established as claimed by the appellant. It is open to the appellant to apply to
have that matter determined under section 191 of the Act, and any such
application would be unaffected by my determination of this appeal. I have
considered any evidence relating to the existing use of the property so far as is
material to this appeal.
5. The Council have no objection to the proposed ground floor extension, rear dormer
and rooflights. I see no reason to disagree with this. My assessment therefore
largely focusses on the effect of the proposed change of use.
Main Issues
6. The main issues are:
• whether the use of the appeal property as a larger HMO would be
acceptable in terms of its effect on the housing mix in the borough; and
• whether the proposal would adequately promote sustainable modes of
transport and mitigate the transport impacts of the development.
Reasons
Housing mix
7. The appeal property relates to a two-storey end of terrace property situated at the
junction of Sherwood Avenue and Glencairn Road. The property has a small area
to the front which appears to be available for parking, and a private garden to the
rear. The surrounding area is predominately residential in nature.
8. The appeal scheme seeks permission for the erection of a single storey ground
floor rear extension and rear dormer roof extension and for the change of use to a
10 bed HMO (sui generis use).
9. The appellant contends that the appeal property was in lawful use as a small HMO
at the time of the planning application. The Council however query this, stipulating
that no evidence to confirm this use was provided by the appellant. At appeal
stage, the Council have provided tenancy agreements, an HMO management plan
and an HMO license application which were submitted alongside a subsequent
application at the site. All of these documents are dated after 6th February 2025,
when the application this appeal relates to was refused.
10. Whilst there may be no statutory requirement for the appellant to confirm the
existing use, this evidence does somewhat suggest that prior to this, the property
may not have been in HMO use. Although the existing floor plans show six
bedrooms, each with an ensuite, this would not be an overly unusual layout for a
family dwelling and therefore I am not satisfied that this would prove the existing
use as a small HMO. Notwithstanding the above, as previously outlined, it is not
within my remit to formally determine whether the use has already been
established as claimed by the appellant.
11. Policy H9 of the Lambeth Local Plan 2020-2035 (2021) (LP) states that proposals
for new HMOs will be supported where it is demonstrated that, among other
things, it would “not result in the loss of housing suitable for occupation by families
as defined in Local Plan Policy H6”, and where it “would meet an identified local
need”. On my reading, the supporting text to that policy implies that it should be
applied where changes between “smaller” C4 and larger sui generis HMO uses
are proposed. Given the impacts which may arise from an intensification of an
existing HMO use, it seems to me reasonable that it should be applied in this case.
Paragraph 5.39 of Policy H6 outlines how “dwellings suitable for occupation by
families means houses, purpose-built maisonettes and duplex dwellings with
ground-floor access to a rear garden, with three or more bedrooms.”
12. As mentioned, the submitted existing plans show six bedrooms, each with an
ensuite. There is a large kitchen/diner/living room on the ground floor, small
second kitchen on the first floor and garden with communal access to the rear. The
layout does somewhat lend itself to a C4 smaller HMO, however it would not be
overly unusual for a single-family dwelling to have two kitchens, and bedrooms
with ensuites. The layout would not, on the face of things, rule out the property
providing suitable living accommodation for a single family, and I am also not
satisfied that the existing layout proves its use as an existing HMO. On this basis, I
consider that the existing dwelling would be considered suitable for occupation by
a family. The existing dwelling would also meet the definition of “family sized
housing” as set out in the glossary of the LP. Therefore, if the scheme was
allowed, it would result in the loss of a dwelling suitable for occupation by a family.
13. Turning to whether there is an identified need for the larger HMO, the supporting
text to Policy H9 says that “to demonstrate that a proposal is meeting an identified
local need, reference should be made to the Lambeth Strategic Housing Market
Assessment 2017” and various other documents and strategies.
14. The appellant has not referred to any of the listed documents or strategies. They
do outline how the scheme addresses housing need and provides well managed,
high quality, affordable accommodation which contributes to housing choice in the
area. However, I am not satisfied based on the evidence before me that the
scheme would meet an identified local need.
15. The appellant has drawn my attention to an appeal (Ref:
APP/N5660/W/24/3337243, dated 15th July 2024). They outline how the appellant
in this appeal did not provide formal evidence of an identified local need. It is
however evident that the property which this appeal related to was previously an
eight-bedroom dwellinghouse, and the scheme sought to utilise two additional
rooms. I am therefore not satisfied that it is directly comparable to the scheme
before me, which seeks to extend and intensify the use of the property, creating a
10 person HMO.
16. Given the above, the scheme would be contrary to Policy H9 of the LP. This policy
seeks to safeguard housing that is suitable for occupation by single families and
ensure development meets an identified local need.
17. If the Council’s view that the property should be treated as still being a Class C3
dwellinghouse is correct, there would also be conflict with Policy H3 of the LP,
which seeks to safeguard existing self-contained C3 housing. However, as
outlined previously, it is not within my remit to formally determine whether a
particular use has already been established as claimed by the appellant.
18. I do not find any conflict with Policy H8 of the London Plan (2021) which relates to
replacing existing housing with new housing at existing or higher densities, loss of
hostels, staff accommodation, shared and support accommodation and the
demolition and replacement of affordable housing.
Sustainable modes of transport and transport impacts
19. The Council’s second refusal reason relates to the failure of the appellant to
secure via legal agreement, a Controlled Parking Zone (CPZ) contribution,
restrictions on occupants obtaining a car parking permit, and the provision of car
club and cycle hire membership. At final comments stage the appellant has
contested whether the obligations are required.
20. Regarding car parking permits, the site is not situated within a CPZ and there is no
evidence before me to demonstrate that parking stress in the area is at an
unsustainable level or there are plans to make the area surrounding the site a
CPZ. 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. As such, I am not satisfied that that permit-free
development is necessary on this basis.
21. Turning to the provision of car club and cycle hire membership, 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, I am not persuaded that car club and cycle hire membership for four
additional occupants would meet the tests for planning obligations set out in the
National Planning Policy Framework (the Framework) or Regulation 122(2) of the
Community Infrastructure Levy Regulations 2010. Furthermore, although not
demonstrated on the plans, the Council accept that there is ample space at the
site to accommodate ten cycle spaces and two visitor cycle spaces.
22. Regarding the CPZ contribution, the site would appear to provide two parking
spaces to the front of the dwelling. Given there would be four extra bedrooms, this
could potentially result in an additional four cars, on top of potentially six cars, if
the current use is as a six bed HMO. The demand for parking would therefore not
be met within the site and a contribution is reasonable.
23. I note the appellant has submitted a draft Unilateral Undertaking (UU) seeking to
address the matters identified by the Council in terms of adequately promoting
sustainable modes of transport and mitigating the transport impacts of the
development. However, Government guidance is clear “If the appeal is following
the written representations procedure... the appellant must ensure that we receive
an executed and certified copy of the planning obligation at the time of making
their appeal.” (Paragraph 18.2.2.12 of Written Representation Appeals the
Procedural Guide: Planning Appeals - England).
24. For the reason given in the previous paragraph, I am not satisfied the draft UU
submitted, which is unsigned and undated secures the CPZ contribution to
mitigate the increased demand for parking, in accordance with Policy T6 of the LP.
As such I afford it no weight.
25. Given the above, the scheme fails to accord with Policies D4 and T6 of the LP and
Policies T4 and T6 of the London Plan (2021) in the absence of a completed
agreement to ensure a CPZ contribution. Collectively, amongst other things, these
policies seek to prevent development from adding to parking stress and maintain
the safe and efficient use of roads. I however find no conflict with Policy T3 of the
LP and Policy T5 of the London Plan, which seek to promote sustainable modes of
transport including cycling.
Other Matters
26. If it was the case that the dwellinghouse was not in use as a C4 smaller HMO at
the time of the application, I am mindful of the fallback position under Schedule 2,
Part 3, Class L of The Town and Country Planning (General Permitted
Development) (England) Order 2015 (as amended) (GDPO), which would allow
change between C3 and C4, and vice versa, without planning permission. This
position is not disputed by either party. However, the Council’s refusal reason
notes that the proposal would result in the loss of a property “capable” of providing
a single dwellinghouse. I highlight the word capable as this reinforces that the crux
of the issue is that the proposed change of use to a larger sui generis HMO would
remove the flexibility provided by Schedule 2, Part 3, Class L of the GDPO. I
therefore do not agree that given the fallback position, any harm relating to the
loss of a family house is reduced or neutralised.
27. Notwithstanding the above, the appellant suggests that the modest increase from
a 6 people HMO (which could be done without planning permission) to a 10 person
HMO does not fundamentally alter the land use character or materially worsen any
impact. I do accept that the fallback position has a greater than theoretical
possibility of being implemented, as the existing plans indicate that the dwelling
could be suitable for use as a C4 smaller HMO. However, in my view, there is a
significant difference between a 6 person and a 10 person HMO, and I do not
consider the impacts to be directly comparable due to the intensified use. Whilst
the occupants may share the same communal and outdoor facilities, with similar
management and licensing controls, the scheme seeks permission for extensions
and four additional bedrooms. I have afforded the fallback position limited weight
as it is a different scale of development in my view.
28. In any case, as outlined above, the issue is that the proposed development would
remove the flexibility provided by Schedule 2, Part 3, Class L of the GDPO in that
it would prevent the HMO being reverted back to a family dwellinghouse without
planning permission.
29. Notably, the appellants own evidence outlines how the grant of planning
permission for sui generis large HMO use does not permanently remove the lawful
ability to revert to C3 or C4 and goes onto explain that planning law confirms the
fallback status continues unless the development becomes physically incapable of
reversion. In my view, it would be problematic to revert a 10 person HMO back to a
C3 single family dwellinghouse and in any case, planning permission would be
required.
30. The appellant has drawn my attention to an appeal (Ref:
APP/U5360/W/24/3352804, dated 28th January 2025) whereby an Inspector
outlined how the existence of permitted development rights to change the use of
the property from a dwellinghouse to an HMO means that the loss of a family
home would occur either way. They concluded that this fallback position therefore
outweighed the harm identified. However, this appeal was against a decision by
the London Borough of Hackney and was for a 7 bed HMO. I am not aware of the
precise considerations and policy context on which the decision was based on,
and I am not satisfied that the two schemes are directly comparable.
31. My attention has also been drawn, by the applicant, to an allowed appeal at Valley
Road, Lambeth (Ref: APP/N5660/W/24/3337243, dated 27th August 2024),
whereby the Inspector concluded that the fall-back position was a material
consideration which overcame the objection in policy terms. Again, I am not
satisfied, based on the evidence before me, these appeals are directly
comparable. The Valley Road appeal benefited from a lawful development
certificate relating to a change of use from a single-family dwelling to a small HMO.
Furthermore, that development sought to utilise two existing rooms as bedrooms,
whereas the appeal before me seeks permission for extensions to create four
additional bedrooms, thereby significantly intensifying the use of the property. In
any case, each decision is based on its own merits. I have afforded reference to
both appeals limited weight.
32. The Council have raised several other concerns at appeal stage including the
effect of the change of use on neighbouring amenity, character of the area,
increased anti-social behaviour, the size of a number of bedrooms, the lack of an
HMO management plan and a pending Article 4 Direction. These issues were
however not raised in its case officer report or referenced in refusal reasons. The
appellant has objected to the introduction of these issues; however, they have
provided an HMO management plan at appeal stage. Notwithstanding this, given
my findings on the main issues, these concerns would not be determinative. I have
therefore not considered these issues further.
33. London Plan Policy H9 largely relates to the protection of HMO’s which are of a
reasonable standard. Therefore, whilst I do not find any conflict with this policy, it is
not overly relevant in this decision. I have afforded this point limited weight in
favour of the decision. Whilst I find no conflict with London Plan Policy H11, I also
do not find it to be overly relevant given it relates to build to rent.
34. I note the appellant’s concerns over the Council’s handling of the application.
However, this is not a matter that I can consider under a
Section 78 planning appeal and does not alter my findings, in which I have had
regard solely to the planning merits of the proposal.
Planning Balance
35. Bringing together my conclusions on the main issues, I have found that the
proposed development would harm the housing mix in the area and would not
mitigate against any additional parking demand. This would be contrary to the LP
and the aims and objectives of the Framework.
36. However, these issues must be balanced with other factors. The scheme may
meet Lambeth’s HMO Standards and National Minimum Space Standards,
although the Council suggest that a number of bedrooms may not meet HMO
standards. Adequate facilities, suitable outlook, daylight and privacy for future
occupiers may also be provided. The scheme may not harm neighbouring amenity,
infrastructure capacity or the character of the area, however again I note that the
Council have raised concerns regarding the over proliferation of HMO’s in the area
at appeal stage. The HMO Management Plan submitted may ensure the day-to-
day management of the HMO, including fire safety and waste management
amongst other things. It would make efficient use of an existing building in a
relatively accessible area and may provide sustainable, well-managed and
affordable housing, contributing to housing need. Whilst these are important
benefits, given the overall scale of development I have afforded them limited
weight.
37. The adverse impact on the housing mix in the area and the increased parking
demand which would not be accommodated for on site would significantly and
demonstrably outweigh the benefits when assessed against the Framework as a
whole. I find that the conflict with the relevant part of the development plan, which
is consistent with the Framework, is not outweighed by other factors and therefore
the appeal should not be allowed.
Conclusion
38. For the reasons given above I conclude that the appeal should be dismissed.
S Burch -
INSPECTOR