Tuesday, 28 November 2017
Amalgamation of dwellinghouses again
Readers are no doubt aware of the High Court judgments in Richmond-upon-Thames LBC v SSETR  J.P.L. 84 and R (Kensington and Chelsea RBC) v SSCLG  EWHC 1785 (Admin), on which I have commented both in this blog and in my recently published book, The Essential Guide to the Use of Land and Buildings under the Planning Acts, but these rulings continue to cause difficulties in practice.
Notwithstanding the binding nature of these two judicial authorities, which have since been followed by inspectors in a number of planning appeals, I have serious reservations regarding these two judgments. A property owner should be able (with professional advice, if necessary) to know whether a particular adaptation or change to a property is or is not development within the definition in section 55, without having to carry out research to establish whether there is an underlying housing shortage in the area in question which might make the loss of housing units through amalgamation a material planning consideration that may affect the lawfulness of this amalgamation (even where there is no relevant Development Plan policy that addresses this issue).
In light of these two judgments, owners and developers are now faced with a situation in which 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 underlying housing shortage in the area in question which might make the loss of housing units through amalgamation a material planning consideration, whereas in others (notably in various London boroughs), the very same change could be a material change of use, if the Richmond and Kensington & Chelsea cases are followed.
The practical difficulties that could arise in these circumstances were illustrated by two further cases, Royal Borough of Kensington & Chelsea v SSCLG and Noell  EWHC 1703 (Admin) and Royal Borough of Kensington & Chelsea v SSCLG and Larham  EWHC 1704 (Admin). Both were concerned with appeals against the refusal of planning permission (rather than LDC appeals) relating to proposals for the amalgamation of four and two flats respectively to form a single large dwelling in each case. The Inspector determined that the loss of residential units was acceptable, based on his calculation of housing requirements in the borough, and so he allowed both appeals. The LPA challenged those appeal decisions on the basis that the Inspector was mistaken in his calculation of the housing land supply, and both appeal decisions were quashed on this ground. Whilst these appeals turned on planning considerations of a type that is common in section 78 appeals, it is clear that similar disputes could easily arise in LDC appeals, in light of the earlier judgments in Richmond and in the 2016 Kensington and Chelsea case. These latest judgments demonstrate the uncertainty faced by property owners and developers in face of the variable planning judgements that might influence a decision as to whether the amalgamation of particular dwellings is or is not lawful by reference to section 55(2)(f).
What is needed is certainty in the law. Section 55(3)(a) makes it absolutely clear that the use as two or more 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. It would be an easy matter for a similar sub-clause to be added to section 55(3) declaring with equal clarity that the use as a single dwellinghouse of any building [which by definition includes a part of a building] previously used as two or more dwellinghouses involves a material change of use of the building and of each part of it which is so used.
As I have explained before, but it bears repeating, my objection to the current position in light of the Richmond and Kensington judgments is solely to the legal uncertainty that has arisen as a result of these two High Court decisions. So far as I am concerned, there could be no objection in principle to 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 any such change in the law should take the form of an amendment to the 1990 Act, rather than depending on 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 London boroughs), then it is Parliament who should amend the Act to resolve this issue.
© MARTIN H GOODALL