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