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