Amalgamating two or more dwellings (2)

[UPDATE 28.6.16: The appeal decision summarised below has been subject to a challenge in the High Court, which was heard a couple of weeks ago. My sources tell me that an oral indication of the judgment was then given, but that this was embargoed to await the handing down of the formal written judgment in due course. When his becmes available, I will return to this topic in a further post.]

Those of you who follow the comments on various posts in this blog may have seen that Andy Rogers contributed a comment on my previous piece about the amalgamation of dwellings to form a single enlarged dwelling, in which he drew attention to another appeal decision in London last October that led to the opposite conclusion to that reached in the appeal on which I reported in my last article.

For reasons that I shall explain, I do not see any inconsistency between these two appeal decisions. I made it clear in my first article that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use. A decision on this issue must necessarily depend on the facts of each case and on the relevant policy considerations that apply in that situation. I appreciate that people may be uncomfortable (as I am myself) with the proposition that what should in principle be an objective judgement as to the lawfulness of a change of use should be dependent in any way on the consideration of planning policies but, in light of the Richmond judgment, this would appear to be unavoidable in these cases.

The appeal to which my attention has now been drawn (3028049) was in the Royal Borough of Kensington and Chelsea and involved the amalgamation of two self contained flats to form one self contained residential unit, involving internal alterations. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit.

The main issue was whether the amalgamation of the two flats to create one residential unit would constitute a material change of use. The amalgamation of the two flats would have no material effect on the external appearance of the property and no harm would be caused to the character of the building or to the surrounding area. The Council did not allege that the proposed amalgamation of the two flats would have any effect on the character of the use of land other than through the loss of one residential unit. However, they argued that the “…scale of amalgamation currently under way in this Borough is having a material effect on a matter of public interest, namely it is significantly reducing the number of dwellings in the housing stock”.

The Inspector pointed out that prior to 2000 it was commonly accepted that a reduction in the number of dwelling units on land in residential use did not represent, and could not contribute to, a material change in use of the land. [Although it was not spelt out in the decision letter, this was by reason of the operation of section 55(2)(f) in the 1990 Act.] However, the judgment in the Richmond case, cited in my previous article, modified that view, and the Council sought to rely on this judgment in resisting the grant of an LDC in the present case.

The Inspector drew attention to the reference in the Richmond judgement to Mitchell v SSE [1994] 2 PLR 23, although it has always seemed to me that Mitchell was only of marginal, if any, relevance in the context of the Richmond case, because it dealt with an application for planning permission and was concerned with the material considerations that had to be taken into account under section 70, and so it would not appear to me to have been an appropriate foundation on which to base the judgment in Richmond (although that judgment might perhaps be justified on other grounds that do not depend on Mitchell, for example the passage I quoted in my last article from the judgment of Lord Denning in Wakelin). Nevertheless the Inspector accurately quoted the relevant passage from Richmond: “It is undoubtedly the law that material considerations are not confined to strict questions of amenity or environmental impact and that the need for housing in a particular area is a material consideration...…”. But he pointed out that, in order for it to be a material consideration, the need for housing must be expressed in and supported by local planning policy.

The Inspector observed that the High Court challenge in Richmond was successful because the Inspector in that case had failed to take into account a material consideration, namely the policy factor, which he considered to be “…a question of planning merit than of law”. The Inspector in the present case stated (correctly, in my view) that Richmond did not establish that the policy factor can be the sole determinative factor in an LDC case but one that must be taken into account with all other considerations. But, in the instant case, the Council was wholly relying on the policy factor.

The Inspector nevertheless, went on to consider whether this was a material consideration of any weight. Policy CH 2 ‘Housing Diversity’ of the Council’s Core Strategy (CS) states that the Council will, amongst other things, resist development which results in the net loss of five or more residential units. The proposed amalgamation of the two flats would result in the loss of only one residential unit. So the proposal did not conflict with CS policy CH 2. Saved policy H17 of the Council’s Unitary Development Plan (UDP) states that the loss of existing, small, self-contained flats of one or two habitable rooms will be resisted. Both flats had more than two habitable rooms, so the proposal did not conflict with UDP policy H17.

Policy 3.14 of the London Plan states, amongst other things, that the loss of housing should be resisted unless the housing is replaced at existing or higher densities with at least equivalent floorspace. The London Plan is a strategic plan and places an emphasis on the increase or preservation of residential floorspace rather than the number of housing units. This strategic objective is reflected in the LPA’s Core Strategy, but the relevant policy in this element of a local plan was considered in the passage in the decision letter referred to above. The proposed amalgamation of the two flats would not result in any loss of residential floorspace. The proposal did not therefore conflict with London Plan policy 3.14.

The Council had referred to similar LDC cases in a neighbouring London Borough but planning policy in place (or planning decisions made) in that area could not be imported to support the Council’s case. The scale of amalgamation in Kensington & Chelsea may be having a material effect on the number of dwellings in the housing stock but the proposed amalgamation of the two flats did not conflict with CS policy CH 2, UDP policy H17 or London Plan policy 3.14. The policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act. Planning permission was not therefore required for the proposed use. The section 195 appeal thus succeeded, and the Inspector issued the requisite LDC.

I have no doubt whatsoever that this appeal decision is entirely compatible with the judgment in Richmond, and it clearly demonstrates the limits of what might be called “the rule in Richmond”. Re-reading that judgment myself while preparing this article has brought home to me the strictly limited application of that rule. One can see why it was applied in the appeal that I reported in my previous article, and on the facts of that case, that Inspector’s decision was also correct. In fact, my statement that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use should perhaps be qualified, by saying that it will not be a change of use in the absence of clear policy objections, and that this in turn will depend on the nature and scale of the proposed amalgamation. Clearly the amalgamation of only two residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. Ultimately, of course, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account.

© MARTIN H GOODALL