51 The Avenue

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This project culminated in two appeal victories, a cost award against Durham County Council [‘the Council’] a formal complaint and an apology.

Starstruck Ltd was referred to me following refusal of an application to create a vehicular access to the front garden of 51 The Avenue, Durham. This property is within the City of Durham Conservation Area and its front wall had been removed as it was considered dangerous. The front garden had been graveled and used for parking. It was my client’s intention to re-erect walls either side of the access. At the time the property was in use as small house in multiple occupation having benefited from permitted development rights to change from a single family dwellinghouse.

Following a planning enforcement investigation, the Council had advised Starstruck Ltd to submit a retrospective Conservation Area Consent application in order for it formally to consider the proposals. An application was submitted. Despite an officer recommendation to grant conditional approval for the development, the matter was referred to the Area Planning Committee at the beckoning of a ward Councillor. The Committee refused consent.

I was appointed to handle the appeal and also to prepare a planning application for the material change of use of the small HMO to a super HMO, an increase in occupants from six to nine.

I was, and still am, convinced that conservation area consent was not required for the demolition of the wall, the only part of the development that would have required the express consent of the Council. I argued this point until I was blue in the face but my arguments were ignored forcing an appeal that I had hoped to avoid.

An appeal was lodged but I also considered that the Council had acted unreasonably in refusing consent for the proposed development. Planning Practice Guidance advises that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary expense in the appeal process. On my client’s behalf, I pursued an application for costs against the Council for what I considered to be its unreasonable behaviour.

I was appointed to handle the appeal and also to prepare a planning application for the material change of use of the small HMO to a super HMO, an increase in occupants from six to nine.

On lodging of the appeal against refusal of conservation area consent, I shifted my intention to my client’s wish to provide a further three bedrooms in the property through use of the roof space and an existing rear off shot thereby creating a ‘Super HMO’. Mention the word, dare I say it?, ‘student’, in Durham and you are met with the same face of horror from officers, Councillors and objectors alike as if you had uttered the word ‘Macbeth’ to an actor within a theatre. To give them credit, officers recommended approval of the application and, true to form, the Committee refused consent for rather spurious reasons.

We duly appealed the decision and I lodged a further application for an award of costs against the Council for what was considered to be unreasonable behaviour causing my client to incur unnecessary expense in the appeal process.

Following the lengthy process, the appeal was allowed and conditional planning approval granted for the Super HMO. The costs application was allowed also.

Subsequently, the Planning Inspectorate also allowed the wall appeal and granted retrospective conservation area consent for the partial removal of the wall and its re-erection to allow vehicular access to the front of the property. However, the Planning Inspectorate did not allow the first award of costs application we made. However, I did secure an award of costs, granted by the Planning Inspectorate, for Durham County Council’s unreasonable behaviour in refusing planning permission for the House in Multiple Occupation proposal.

In the costs decision the Inspector said:

‘In respect of the Council’s reason for refusal, I have found that little evidence has been provided to substantiate either reason. Moreover these reasons were given in the light of the Council planning officer’s assessment and recommendation to the contrary on these specific matters. Although the Council is not obliged to follow the professional advice of its officer, in its response to the appeal the Council did not provide any relevant evidence to support the Planning Committee’s contrary decision.’

The Inspectorate ordered the Council to pay my client the costs of the appeal, in this respect alone amounting to over £1k. Tied in with two appeal victories, it was a win-win-win for my very pleased client.