Agenda item

The Case Officer for this application introduced this report and made the following comments:

·       As indicated on the amendment sheet, the applicant had exercised their right to refer the application directly to the Secretary of State for approval

·       Deviations from the previous application had been approved

·       Officers believed that the installation of the proposed pillars and the re-design of the bay windows should be included if the Inspector was minded to grant the appeal

·       Legal advice had been obtained in relation to the condition proposed by the Committee at the last meeting relating to enforcement of noise. This had confirmed that it would not meet the required test

·       Officers were, therefore, recommending  that the Committee resolve that had it been able to determine this application, it would have approved it

·       In the meantime, officers would continue to pursue rigorous enforcement of the building as a large use HMO

In response to members’ questions, officers made the following comments:

·       Officers had been advised that it was likely that the development would be used for long-term letting and C3/C4 retail use

·       The HMO is currently licensed for small use lettings and it was therefore assumed that the development would meet space standards for this

·       Whilst there was understandable concern amongst Committee members that there had been a breach of planning regulations in this case, the planning process did allow an application for retrospective approval. Any assessment of this application had to be made dispassionately and, in this case, involved purely the request for external alterations. If the application had requested a large term HMO and short lettings, it is likely that officers would be recommending refusal

·       In the meantime, the previous breach was being investigated by the enforcement team subject to reassurances from the applicant that these activities would cease. This enforcement case would continue until any breach ceased

·       Whilst the legal opinion set out in one of the Public Forum statements was noted, officers did not necessarily agree with this. Whilst this would be a consideration if the final decision did not rest with the Planning Inspector or if the applicants were applying to change permission in accordance with Section 73, it would not now be possible for DCB Committee to be challenged for its decision

·       A change of use was by law a matter of fact and degree based on the evidence received. Whilst any approval could include an Advice Note, the legal advice they had received was that any condition would fail the required test. However, the Committee could choose to put forward a condition if it chose to do so and the Planning Inspector could put firmer controls on this

·       Whilst the Committee was no longer determining this application, the Planning Inspector needed to know the view of the Committee on this issue

·       Enforcement action could be pursued regardless of the Inspector’s decision

·       Internal changes are not controllable under planning regulations. Therefore, the main issue for the Committee to consider is whether or not the external arrangements are acceptable

·       Whilst it may be frustrating for the Committee in dealing with situations where an individual has now followed the approved plan, they needed to consider the issue dispassionately on its own merits

·       If the existing application was refused by the Inspector, further enforcement action would be required

·       Past experience had shown that Inspectors did not tend to include Advice Notes in their decisions but were vigorous in challenging conditions

·       Following some focused work after the recent discussion on enforcement at the Growth and Regeneration Scrutiny Commission, a number of enforcement actions had been served. There had been 50 complaints recently, most of which had now been resolved. The small number of outstanding cases were now being pursued with legal action

·       The previous owners obtained planning permission on appeal and therefore there was no current planning application seeking this

·       Officers believed that the appeal permission had been gained by another party but could not judge behaviour or motives on this basis

·       Officers outlined the three main options open to the Committee – approval as per the requested application, approval but requiring short-term lettings (perhaps with an Advice Note) or refusal on the grounds that the physical changes to the building were deemed unaccpetable

Committee members made the following comments:

·       There had been repeated failures to comply with planning permission which undermined their purpose

·       It was frustrating that the decision has been taken out of the Committee’s hands

·       It was of great concern that these were high turnover tenancies

·       The Committee should only approve what had already been awarded on appeal or require a fresh application

·       Under the circumstances, the Committee should vote against the application

·       The changes proposed to the external building were radically different than those which previously been approved as they were highly symmetrical. The Committee would have sought to strengthen these if it had been able to

·       The legal argument set out in one of the Public Forum submissions might be applicable in this situation and needed further investigation

·       It was a great concern that there had been no change in the behaviour of the applicant in this case and that further enforcement appeared to be required

In accordance with convention, Councillor Ani Stafford-Townsend moved the officer recommendation to approve the application. This was not seconded.

Councillor Fabian Breckels moved, seconded by Councillor Lorraine Francis and upon being put to the vote, it was

RESOLVED (unanimously) – that the Committee

(1)  notes that, following the applicant’s appeal against non-determination to the Planning Inspectorate, it can no longer determine the application

(2)  resolves that had it been able to do so, it would have refused the application on the grounds of poor design and the negative impact on the character of the local area