The amalgamation of two or more dwellings into one has always posed the question as to whether it constitutes a material change of use (under section 55 of the TCPA 1990) and subsequently therefore requires planning permission.
Section 55 confirms that the subdivision of a dwelling amounts to development but it is silent on whether amalgamation does also. However, the recent Richmond case (Richmond Upon Thames LBC v Secretary of State for the Environment, Transport and Regions) held that whether a planning permission is required for amalgamation should be a matter of fact and degree as to whether the loss of an existing use represents a material change having regard to the planning merits of the area, any planning policies in place and the evidence of need. Housing targets in national and local planning guidance mean that the loss of housing units, due to amalgamation can have a harmful impact on meeting the need for new housing in an area.
In the RB Kensington and Chelsea v (1) Secretary of State for Communities and Local Government (2) David Reis (3) Gianna Tong , the Council therefore considered, on the basis of the earlier Richmond case and in support of its Development Plan which supported the retention of it housing stock, that priority to protecting the housing stock outweighed the benefits of amalgamating two residential units.
A Planning Inspector allowed the appeal for the Council’s refusal for the amalgamation of the residential flats into a dwelling stating that it did not constitute a material change and accorded with the Development Plan. Accordingly, the planning permission and certificate of lawfulness was granted under section 192 of the TCPA 1990.
However, at the High Court, the judge held that in this case, the LPA was entitled to reply upon their information on the effect of conversions on the supply of housing 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 required to consider whether that factor was significant for the purpose of determining whether the proposal fell within the scope of section 55 of the TCPA 1990 and not on the basis that the consideration was not supported by the Councils planning policy.
The defendant’s argument that the loss of one residential unit at the time would not have a materially adverse impact on the Council’s efforts towards the London Plan housing targets was rejected by the Judge. In his response, the Judge advised that he could not be satisfied that the Inspector would have necessarily granted the Lawful Development Certificate if he had fully considered the matter in the first instance.
For the above reasons, the decision to allow the appeal under section 195 and the grant of the LDC under section 192 was quashed and the appeal must be re-determined by the Secretary of State.
This appears to raise more questions than answers with regards to the amalgamation of two or more dwellings and whether it will be determined by the prevailing planning policies. Both the Richmond case and the recent Royal Borough of Kensington & Chelsea High Court Judgements have held that amalgamation is capable of being a material change of use in planning terms. However, each case will require individual assessment against the relevant development plan policy documents alongside other material considerations. As a result, there is the real possibility where proposals will amount to a material change of use in one Local Planning Authority but not in another.