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