Preclusive conditions again

Some readers may be wondering why, having written on several previous occasions about the issue of conditions that appear to preclude the operation of either or both section 55(2)(f) of the 1990 Act and/or permitted development rights under the GPDO (in accordance with Article 3(4) of that Order), I have been so slow to comment on the case of Dunnett Investments Limited v. SSCLG[2016] EWHC 534 (Admin), in which judgment was handed down on 11 March this year. There were two reasons for this. First, Keystone Law had been professionally involved in this case (although we did not have the conduct of the action at trial in the High Court) and it did not seem appropriate to comment on it while the case was still in progress. Secondly, following the judgment in the High Court, I was aware that an application had been made for permission to appeal to the Court of Appeal, and I was waiting to see whether the case might proceed further. At the time of writing, I have no further news of this, so have decided to deal with the case here in any event. I will report on any further developments in the case if or when they occur. [See now the Update printed at the end of this post.]

Until the judgment in Dunnett, in March of this year, no judgment since Dunoon Developments had suggested that permitted development under the GPDO can be excluded by a condition that does not refer specifically to that Order. The cases of RFU and Royal London Mutual Insurance related solely to section 55(2)(f) (and to Article 3(1) of the UCO) and, it has always been my view that they could not properly be cited in support of the proposition that the effect of the GPDO can be excluded by a similarly worded condition (i.e. containing no specific reference to the GPDO).

The facts in Dunnett were somewhat complex, but the wording of the condition in question in that case was:

“The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

and the reason for the imposition of the condition was:

“In order that the Council may be satisfied about the details of the proposal due to the particular character and location of this proposal.”

An application for prior approval was made by the claimant in respect of a proposed residential conversion of this building. It was conceded that the LPA had failed to determine this application within the 56-day period, although they had sent a letter a few days outside this time limit in which they purported to refuse the application on the ground that it was precluded by this condition, in accordance with Article 3(4) of the GPDO. The claimant sought an LDC that it was now entitled to proceed with the proposed development. This was refused by the LPA for the reason previously stated, and an appeal under section 195 was dismissed. It was this appeal decision that was now challenged in the High Court.

The LPA contended that the condition (and the stated reason for its imposition) showed a clear intention to limit the scope of the planning permission to only the use permitted (Class B1), and that this was done to satisfy the Council regarding the details of the proposal on account of its particular character and location. It was therefore the Council’s view that the use of the site remained restricted by this condition to Use Class B1 (business) of the Town and Country Planning (Use Classes) Order 1987 (as amended). It would consequently prevent a change of use to the proposed residential use without express planning permission.

Three submissions were made on behalf of the claimant, each in the alternative –

(1) that a change of use was only precluded by the condition until express planning consent was granted. Planning permission was granted here through the operation of Class J of the 1995 GPDO; it did not mean that only the Council could grant the permission required;

(2) that “express planning consent” included the prior approval procedure under paragraph N of the 1995 GDPO. The effect of the Council’s failure to issue a response to the claimant’s application gave the claimant the right to commence development and so was a planning consent within the terms of the condition;

(3) that the condition did not implicitly preclude the ability to implement a planning permission granted by the GPDO.

Both the claimant and the Secretary of State drew attention to the judgment of the Supreme Court in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74. Although the situation before the Supreme Court in Trump was dealing with a different statutory regime, the judgments of Lord Hodge and Lord Carnwath were found to be of assistance in defining where the law on planning conditions is now. They had moved the law on in relation to implied conditions and may have reformulated some of the previously accepted principles. From their judgments Mrs Justice Patterson distilled the present position to be as follows:

1) Planning conditions need to be construed in the context of the planning permission as a whole;

2) Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;

3) Consistent with that approach a condition should not be construed narrowly or strictly;

4) There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;

5) The fact that breach of a planning conditions may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;

6) A planning condition is to be construed objectively, not by what the parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;

7) A condition should be clearly and expressly imposed;

8) A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;

9) The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.

Applying these tests, the judge held, in respect of the first ground of challenge, that there was no “express planning consent” within the meaning of the condition. As the Secretary of State had submitted, “express planning consent” means a planning application resulting in a written consent. The phrase goes further than a Development Order grant as envisaged under section 58 of the 1990 Act.

Furthermore, the condition continued “and for no other purpose whatsoever, without express planning consent from the local planning authority first being obtained.” The reason for the imposition of the condition makes it clear that control is retained by the local planning authority so that it can be satisfied about the details of any proposal due to the particular character and location. In other words, the sensitivity of the area to potentially unsympathetic uses was protected.

Consent can be granted by the GPDO, as the claimant submitted, but that was not the case here. The wording of the condition was clear and precise, not to say emphatic, with its phrase “and for no other purpose whatsoever.” The words used meant that planning permission was granted solely for B1 (business) use and nothing else without obtaining prior express consent from the local planning authority. The words used were unequivocal – they excluded consent being granted by the operation of the statutory provision under the GPDO. Were that to occur under the GPDO, this would be without any reference to “the particular character or location” of the proposal which was the reason for the imposition of the condition. Class J of the 1995 GPDO [added to the GPDO in 2013] was simply not envisaged in 1995, as the claimant accepted. The prior approval scheme under the GPDO circumscribes what the local planning authority can consider to transport and highways impacts, contamination risks and flooding risks. It does not permit an LPA to have regard to the location of the development, save in those three particular areas. On the claimant’s approach, the decision making exercise on the part of the local authority would be circumscribed in a way which was not intended when the condition was imposed.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority has been “first…obtained”. The words used in the condition were consistent with the LPA retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be otiose. They set a clear planning purpose for the imposition of the condition.

Ground 2 of the challenge was similarly dismissed.

Under Ground 3, the claimant submitted that, applying the ratio in Dunoon and Carpet Décor, there needs to be something explicit in the condition itself to exclude GPDO rights. Not only that; the wording used in a condition has to be unequivocal, specific and bear in mind the prospect of criminal sanctions if the condition is not complied with. According to this submission, it was clear that the wording used was inadequate to exclude the GPDO. The approach to construction here needs to be cautious as it will result in the exclusion of statutory rights that would otherwise accrue to the claimant.

In considering the condition, the judge pointed out that the first phrase deals with the use of the building and circumscribes that to Class B1 (business). The second part of the condition (“and for no other purpose whatsoever without express planning consent from the local planning authority first being obtained”), in her ladyship’s judgment, was designed to, and did, prevent the operation of the GPDO, for the following reasons:

first, the second part of the condition serves no other purpose. Without that meaning the second part is irrelevant to this condition;

second, “for no other purpose” is a clear prohibition on use for any other purpose. That means that any other purpose otherwise permitted under the GPDO would be contrary to the condition;

third, the word “whatsoever” is emphatic and, in context, refers to any other use, howsoever arising or under any other power. Read together, and considering the plain and ordinary meaning of the words used, in her judgment, it was clear that the GPDO was excluded.

fourth, the last clause required express permission for what would otherwise not require planning permission because of the GPDO. It could only be given a sensible meaning if the condition in fact removed GPDO rights. The words used were sufficiently specific and unequivocal. It was similar to the tailpiece to the condition considered in R (Royal London Mutual Insurance Society) v SSCLG [2014] JPL 458; and

fifth, the reason for the condition confirmed that any other use would need to be the subject of an express application due to the particular character and location of the site.

The judge held that this approach is entirely consistent with the cases of Dunoon and Carpet Decor relied upon by the claimant.

It followed that, in context, the wording of the condition read together with the reason for its imposition was sufficient to exclude the operation of the GPDO.

I confess to having misgivings about this judgment. Whilst it appears on the face of it to be consistent with other recent judgments on this issue, it would seem to continue an unfortunate trend in conflating the arguments relating to two separate statutory provisions (section 55(2)(f) of the 1990 Act, which relates to changes of use within the same use class, and Article 3(4) of the GPDO which precludes permitted development contrary to a condition in a planning permission).

The judgment in Royal London Mutual Insurance was specifically addressed to a condition which excluded the operation of section 55(2)(f) (and of Article 3(1) of the Use Classes Order). Arguably, different considerations should apply to such a condition compared with a condition which is intended to preclude permitted development under the GPDO. The judgment in Dunnett, whilst asserting that the approach adopted in the instant case was entirely consistent with the judgments in Dunoon and Carpet Decor, did not explain how this approach could in fact be reconciled with the clear words of the passages quoted from those judgments.

In my view, a distinction should be drawn between these two separate statutory provisions, which differ not only in their wording but also in their purpose and effect. For this reason, it should not be assumed that a condition that appears on the face of it to preclude the use of a building or land for a purpose other than that which is expressly authorised by the terms of that planning permission necessarily has the effect of excluding the operation of both of these statutory provisions.

Section 55(2)(f) provides that in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land, or of any part of the buildings or other land, for any purpose in the same class is not to be taken for the purposes of the Act to involve development of the land. Article 3(1) of the Use Classes Order contains a similar provision. However, it should be noted that neither of these provisions grants any form of planning permission. They simply provide that any change of use from one use to another within the same use class is not development at all.

In contrast to this, Article 3(1) of the GPDO grants planning permission for the Classes of development described as permitted development in Schedule 2 to the Order. This is an important distinction. Contrary to the position under section 55(2)(f), development is involved here. These are changes of use for which planning permission is required, and it is the GPDO that grants that permission.

There has, as I have said, been a tendency (exemplified again by the judgment in Dunnett) to conflate the effect of a condition that excludes the operation of section 55(2)(f) with a condition that precludes development which would otherwise be permitted by the GPDO, and it is all too easy to see the effect of a preclusive condition as applying equally to the operation of section 55(2)(f) and to permitted development under the GPDO. However, such an assumption may not necessarily be correct.

What does not previously appear to have been noticed is that the judicial authorities that are frequently cited in this connection may not be universally applicable to the preclusion of both categories of statutory provision mentioned above. Certain judgments relate specifically to conditions that exclude the effect of section 55(2)(f).

Bearing in mind that simply negativing the effect of section 55(2)(f) does not have the effect of removing a planning permission that would otherwise enure for the benefit of the land, it is understandable that in this case, the condition in question need not necessarily refer expressly to section 55(2)(f) or to Article 3(1) of the UCO. This is confirmed by those judicial authorities that have dealt with this issue. The first of these was City of London Corporation v SSE. Two later cases - Rugby Football Union v SSETR [2001] EWHC 927, and R (Royal London Mutual Insurance Society Limited) v SSCLG [2013] EWHC 3597 (Admin)) - were similarly decided. However, the essential point in all these cases is that they related solely to the exclusion of section 55(2)(f) (and Article 3(1) of the UCO). None of these cases related to a condition that had the effect of precluding permitted development under the GPDO.

Although a condition worded like those in the City of London, RFU and Royal London Mutual Insurance cases may be sufficient to exclude the effect of section 55(2)(f), there are two judgments that provide clear authority for the proposition that the effect of the GPDO can only be precluded by a clear reference to the relevant statutory instrument in the wording of the condition (as was clearly established by Carpet Decor and also by Dunoon Developments).

When one takes these points into account, it does not seem to me that the precise effect of a condition that does not expressly refer to the GPDO, but is alleged to exclude its operation in accordance with Article 3(4) of the Order, has yet been conclusively determined, notwithstanding the judgment in Dunnett Investments. I fear that it may require further litigation, and maybe a trip to the Court of Appeal sooner or later, before this issue is finally laid to rest.

UPDATE: I am very grateful to Giorgio Wetzl, Planning Researcher at Nathaniel Lichfield & Partners, for confirming that the Court of Appeal has granted permission to appeal in the case of Dunnett Investments. I understand that the appeal is due to be heard by the Court of Appeal on 15/16 March 2017. Let us hope that the Court of Appeal may finally settle the matter in their hearing of this appeal.

© MARTIN H GOODALL

Section 215 Notice - House painting

Readers may have seen the case of the red-and-white striped house in London reported in the papers. A section 215 notice was served in respect of the painting of the house, requiring it to be repainted plain white. This was appealed to the magistrates court under section 217, who upheld the notice. A further appeal from there to the Crown Court was dismissed by Judge Johnson on 12 July - Lisle-Mainwaring v Kensington and Chelsea RLBC.

The appellant contended that section 215, which is normally used to require the tidying up of rubbish and detritus on unkempt open land, could not be used for this purpose. However, there are certainly cases where the section has been used in situations where it is alleged that the amenity of the area is adversely affected by the condition of a building. The amenity of an area would not normally be adversely affected by the external decoration of a building, but this was a house in a conservation area, and painting the house in red-and-white vertical stripes was unsightly. The judge therefore held that the notice had been properly served under section 215 and should be upheld.

The case arose out of a long-running battle with neighbours over planning permission. In March 2015, the appellant (apparently to spite her neighbours) ordered her contractor to repaint the front of her property with red-and-white stripes. The neighbours complained to the LPA, who responded to these complaints by issuing a section 215 notice which required the appellant to "to remedy the condition of the land" by repainting the house white.

It was the appellant’s submission that a section 215 notice can be used only to require the repair of a property in disrepair which is adversely affecting the amenity of the area. She contended that amenity is adversely affected only in a case that raises issues of repair and maintenance. Therefore, she argued, mere painting of the building did not affect "the condition of land" within section 215.

In dismissing the appeal Judge Johnson held that "amenity" is a broad concept, not defined by the section. It is a question of judgement on the part of the LPA, taking a broad view of the condition of the site, the impact that this has on the surrounding area and also having regard to the scope of the council’s powers under section 215. (See Berg v. Salford City Council [2013] EWHC 2599 (Admin).) The "condition of land" refers to the current state of the land, and a section 215 notice can be used to require works going beyond mere maintenance, so as to remedy the appearance of the land. (See also Allsop v Derbyshire Dales DC [2012] EWHC 3562 (Admin).) Something that affects visual amenity is enough to justify issuing a section 215 notice.

Painting the outside of a building would not in the ordinary way adversely affect amenity. However, one of the key features of the conservation area in which the subject property was situated was its visual integrity, with only a limited range of neutral colours on painted buildings. Painting the property in garish stripes was disruptive of the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting amenity. The painting was unsightly, and section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

The appellant was ordered to repaint the property white within 28 days of this judgment.

© MARTIN H GOODALL

Amalgamating two or more dwellings (5)

My colleague Ben Garbett has summed up the combined effect of the Richmond and Kensington & Chelsea judgments in this way:

(1) The effect of the loss of housing of a certain type must not be disregarded when judging materiality for the purpose of section 55(1) (Richmond);

(2) The absence of a specific Development Plan policy does not mean that such material considerations inevitably carry no weight (Kensington & Chelsea).

I was perhaps guilty of over-simplifying the position in glossing over the second point in my comments on the Kensington & Chelsea judgment earlier this week. Ben correctly queries my conclusion that the outcome may depend on the state of Development Plan policies in the LPA area. It is entirely possible, he points out, that the underlying housing shortage in the area in question could make the loss of housing units through amalgamation material for the purposes of the rule in Richmond, even where there is no relevant Development Plan policy that addresses this issue. On reflection, I agree with him. This is the implication (or one of the implications) of the Kensington & Chelsea judgment.

However, this makes the uncertainty resulting from what I have called ‘the rule in Richmond’ even more of a problem for property owners and developers, and for their professional advisers. The amalgamation of as few as two existing dwellings might be a material change of use requiring planning permission, if it turns out that in the LPA area in question there is an identifiable housing shortage which would be exacerbated by amalgamations of this sort, even if this has not been formally identified and stated in an adopted planning policy. On the other hand, upon objective investigation, this might not be so after all. Whether or not the amalgamation (even of just two dwellings) is a material change of use, and whether it would therefore be lawful or unlawful without planning permission, might be entirely dependent on the outcome of this imponderable question. How is the property owner or developer to ascertain the answer without expert local knowledge of the housing situation in that area? It would appear that in practice it is likely to depend in the first place on the opinion of the LPA itself (even in the absence of an appropriate Development Plan policy) or, on appeal, the judgment of an Inspector. This can hardly be what parliament intended in enacting section 55 of the 1990 Act.

My objection is to the legal uncertainty that arises from the rule in Richmond. I am not confident that the position would necessarily be resolved even if the Court of Appeal were to rule on this issue as I suggested in my previous article. I would have no problem with the proposition that the use as a single dwellinghouse of any building previously used as two or more separate dwellings should be treated as a material change in the use of the building. But this would require an amendment of section 55(3) of the 1990 Act, rather than the less than certain intervention of the courts. Parliament passed the Town and Country Planning Act 1990, including section 55 in its current form, and if it is felt that the loss of residential units through amalgamation is a problem (particularly in some of the Inner London Boroughs), then it is parliament who should amend the Act to resolve this issue and bring certainty to the law.

© MARTIN H GOODALL

Amalgamating two or more dwellings (4)

When I penned my piece on this issue last Friday, I mentioned that I had been unable to ascertain the outcome of the High Court challenge to the appeal decision in Kensington and Chelsea (colloquially known as the Stanhope Gardens case). Thanks to the good offices of a correspondent, I have now seen a transcript of the judgment in that case, which was handed down on 16 June - R (Kensington and Chelsea RBC) v SSCLG [2016] EWHC 1785 (Admin). This would certainly seem to move the law on from the Richmond case.

The LPA’s position in the section 195 appeal which was under challenge was as follows : “The Council now takes the view that any amalgamation which includes the loss of a unit will be development which requires planning permission. This reflects increasing housing targets and the impact that amalgamation is having upon progress on achieving these. Therefore, the Council is of the opinion that the amalgamation of two residential units into one constitutes a material change of use, since it would remove a housing unit from the site and also from the Borough's overall housing stock. Regardless of the size of the units being lost, proposals of this nature would generate material considerations that should be assessed as part of a full planning application.” (The Council had previously operated for some time on the assumption that the net loss of five or more dwellings amounts to development requiring planning permission, and less than that does not amount to development.)

As reported in my previous blog post, in relation to the appeals against the refusal of both an LDC and planning permission, the Inspector agreed with the Owners that the proposed change of use did not conflict with any of the relevant local policies, and so he concluded that the proposal accorded with the Development Plan.

The Inspector accurately summarised the Council's position that, in this particular case, the proposed amalgamation of the flats would not have any effect on the character of the use of the land, other than by the loss of one residential unit, but that the scale upon which amalgamations are taking place in the Borough is having a material effect on a matter of public interest, namely a significant reduction in the number of dwellings in the housing stock. In his decision letter, the Inspector recorded the Council's reliance upon the decision in the Richmond case, in which the High Court quashed an earlier Inspector's decision that a conversion from seven flats to one dwelling did not amount to a material change of use, because that Inspector had disregarded the effect of the loss of a particular type of accommodation from within the LPA’s area.

The Inspector went on to say that 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 which would constitute development as defined in section 55 of the Act. Planning permission was not therefore required for the proposed use. However, in that paragraph of his decision letter, the Inspector did accept that "the scale of amalgamation in the Borough may be having a material effect on the number of dwellings in the housing stock."

It was clear that the Inspector expressly disregarded the policy consideration on the sole basis that the need argument was not expressed in and supported by local planning policy. It was conceded by the Secretary of State that this amounted to an error of law because of a breach of a principle derived from Richmond that whether a planning policy addresses a planning consequence of the loss of an existing use is relevant to, but not determinative of, an issue as to whether the loss of an existing use would have significant planning consequences, even where there would be no amenity or environmental impact. This, according to Richmond, will be relevant to an assessment of whether a change from that use would represent a material change of use. However, the Richmond case did not decide that the need for housing, or any other planning consideration relevant to a determination of whether a material change of use would be involved, must be supported by a planning policy. It may be, or it may not be.

The judge held that in this case, the LPA was entitled to rely upon their analysis of the effect of conversions upon housing supply as a factor supporting the view that the proposal should be treated as a material change of use and subject to planning control. The Inspector was therefore obliged to consider whether that factor was significant for the specific purpose of deciding whether the proposal fell within the scope of planning control under section 55(1). He was not entitled to decide that question simply by saying that the consideration raised by the Council was unsupported by any planning policy.

The defendants (the Secretary of State and both owners) relied on an argument that the loss of one residential unit at this time would not have a material adverse effect on the efforts towards meeting London Plan housing targets, but the judge had no hesitation in rejecting this argument. On the material before the court, he could not be satisfied that the Inspector would necessarily have granted the LDC if he had not fallen into the legal error which had been identified.

It did not follow from such a conclusion on the planning merits of the proposed amalgamation that the housing need concerns raised by the Council were not significant for the threshold purpose of deciding whether planning control even applied. Self-evidently, said the judge, the two questions are not the same and must not be confused by decision makers. The questions need not be answered in the same way. A decision that a planning consideration is not significant for the purposes of section 55(1) means that it does not even merit assessment under section 70(1) in the exercise of planning control. For these reasons the decision to allow the appeal under section 195 and the grant of the LDC under section 192 had to be quashed and the appeal must be re-determined by the Secretary of State.

I have certain reservations about this judgment, on two grounds. First, as in the Richmond case, I am uncomfortable with the proposition that whether or not a conversion of the kind involved in these cases is or is not a material change of use may depend on the precise wording of planning polices in the LPA area in question. The materiality of such a change ought not, in principle (or indeed in practice), to depend on variable planning policies. What if those policies are not up-to-date? What weight is then to be given to them in determining this issue? To answer that it will be ‘a matter of fact and degree’ in each case does not seem to me to be an adequate answer to this conundrum.

A property owner should be able (with professional advice, if necessary) to know whether a particular adaptation or change of a property is or is not development within the definition in section 55, without having to resort to a detailed examination of adopted planning policies and of the comparative weight to be given to them in light of the date of their formal adoption. Otherwise we could have (and probably do now have) a situation where the amalgamation of two or more dwellings in some LPA areas is not a material change of use for the purposes of section 55, because there is no adopted planning policy in that area that seeks to resist the loss of residential units in this way, whereas in others (notably in various inner London boroughs) where adopted policies seek to resist the loss of residential units through amalgamation, the very same change could be a material change if use, if the Richmond and Kensington & Chelsea cases are followed.

The plain fact is that both the pre-existing uses and the single resulting use would both fall squarely within Use Class C3, so that section 55(2)(f) should in principle apply. Moreover, whilst section 55(3)(a) declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used, parliament did not see fit to legislate to the converse effect. They would surely have done so if they had intended that the amalgamation of two or more dwellings should also be a material change of use constituting development in accordance with section 55. It is not for the courts to change the law in this way; their function is to interpret the law as it stands.

We now have two High Court decisions on this issue. Maybe it is time for the position to be reviewed by the Court of Appeal. I don’t know whether either the Secretary of State or the two flat owners are up for an appeal against this latest judgment, but this is clearly an issue of some importance, and it would clearly be in the public interest to sort it out once and for all. The present uncertainty, due to the variability of planning polices from one area to another, is frankly unacceptable.

© MARTIN H GOODALL

Amalgamating two or more dwellings (3)

In successive weeks in February (on the 12th and 18th), I posted two articles on this topic, drawing attention to two contrasting (but not in fact inconsistent) appeal decisions that addressed this issue. I have just seen news of another appeal decision which appears unfortunately to be inconsistent with the two previous appeal decisions.

Just to remind you, the starting point in considering this question is the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84. Section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used; but, there is no corresponding provision in the 1990 Act dealing with the converse situation, where two or more separate dwellings are combined to form a single dwelling.

The Richmond case may appear at first sight to fill this legislative gap, but a careful consideration of that judgment shows that it is certainly not authority for the proposition that the amalgamation of two or more dwellings will necessarily amount to development. It is only in the event that such an amalgamation results in a significant change in the character and impact of the use in planning terms that this might amount to a material change of use.

Richmond established that this need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning units provided. The Richmond case was concerned with the conversion of a property from 7 flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

The important point is that Richmond involved the loss of no fewer than 6 separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use, because of its effect in relation to planning policies seeking to resist the loss of small residential units. However, in the absence of that factor the amalgamation of two or more dwellings should not be taken to amount to a material change of use.

The first of the two appeals on which I reported in February involved a six-storey house in the City of Westminster that had been divided some time ago into 4 flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms, and determined that it would.

The second appeal to which I referred in February (in Kensington & Chelsea)involved the amalgamation of 2 self contained flats to form one self contained residential unit. 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. In this case too, the council sought to rely on Richmond. The Inspector judged this change against the council’s housing polices, but noted that the proposed amalgamation of the two flats would result in the loss of only one residential unit. This did not in fact amount to a breach of the relevant planning policies, and so given that there was no policy conflict, the policy on which the council sought to rely 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.

The logic of the first of these two appeal decisions. in light of the Richmond judgment, is understandable, but the second decision showed that the amalgamation of only 2 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. I was under the impression that the council in this second case (Kensington & Chelsea) had challenged this appeal decision in the High Court, but I have been unable to trace the judgment.

I ended by observing that, ultimately, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account. And so we come to the most recent appeal decision, of which I have so far seen only a brief report, and not the decision letter itself. This was another case in London, involving the amalgamation of 2 flats to form a single dwelling. It is not clear from the brief report I have seen whether the Inspector felt that policy considerations were of particular importance in this case, but he seems to have opined that the amalgamation of two units into one might have significant consequences in reducing the overall housing stock [by just one unit?!]. His dismissal of the appeal therefore seems to have been based not so much on an effect that the development would have in policy terms that had been clearly identified, but simply on the basis that this was an issue that should be the subject of public consultation through the medium of a full planning application, which would consider the planning merits of the proposal.

If the admittedly brief account of this appeal decision that I have seen is an accurate reflection of the Inspector’s reasoning, then this decision does seem to be founded on rather shaky legal ground. It is clear from the Richmond judgment itself that, in order to amount to a material change of use, the amalgamation of two or more properties to form a single dwelling must have a more than marginal effect on the character and impact of the use in planning terms.

If it has no material effect in terms or its physical and environmental impact, then I would suggest that the effect that it might have in policy terms would have to be really significant. It would therefore seem that the amalgamation of only two dwellings to form a single unit would be very unlikely, other than in the most exceptional circumstances, to have such a significant effect in policy terms as to represent a change in the character and impact of the use sufficient in itself to amount to a material change of use.

The amalgamation of a larger number of units to form a single dwelling might very well have that significance, as was the case in Richmond itself (7 dwellings combined into one, involving the loss of 6 units) and in the Westminster appeal (4 dwellings combined into one, involving the loss of 3 units), although even these cases were dependent on a clear policy background. Absent such strong policy considerations, the impact of such amalgamations in planning policy terms might not be sufficient to amount to a material change of use.

© MARTIN H GOODALL