Subdivision of residential properties Q & A DCP Section 11.1

This section covers proposals to sub-divide dwellings and to convert existing houses into self-containing flats. It also considers the amalgamation of flats into dwellings. It excludes the conversion or use of houses for multiple occupation, see (11.2). Conversions relying on the construction of extensions raise the same visual and amenity considerations as discussed at (12.2).

Q & A    11.1/10

I note that my local authority has advertised a planning application for conversion of two flats back to the original use of one house. Is planning permission actually required for this?

Yes it is, if the judgement in The London Borough of Richmond-upon-Thames v SSETR [2000] is followed. Prior to this case the prevailing wisdom was that "de-conversion" did not constitute a material change of use, and to my mind that was correct. However, the deputy judge in this case felt that part of the assessment of materiality was effect on planning policy, which here was against the loss of small residential units.

It is a pity that this controversial judgement did not go on to the Court of Appeal.

My client has received planning permission for an extension to her dwelling and she now wishes to occupy the whole with her son and daughter-in-law. She is willing to accept a condition preventing the formation of two separate dwellings but the local planning authority are of the view that the provision of an additional kitchen on the first floor for use by the younger generation would cross the line between a granny annex and a material change of use. Can you advise?

Presumably there is some planning policy objection to the creation of an extra unit of accommodation in this house. The legal issue is whether or not two separate living units are being created from one in the terms set out at section 55(3)(a) of the Town and Country Planning Act 1990. The point at which accommodation becomes so self-contained as to be a "separate dwellinghouse" is a matter of fact and degree, and cases show that a number of considerations need to be taken into account. In your clients case I assume that there would be no complete physical separation of this accommodation and that some services would be shared. In these circumstances I would not have thought the fact that there will be two kitchens is enough to  assert that a separate dwellinghouse has been created. A good reference is the Southend-on Sea decision quoted in Development Control Practice at (11.11).

I have heard that as the result of a court decision the "de-conversion" of houses in flats back to their original usage as single dwellinghouses is now accepted as a material change of use.  Such a judgment seems to me to be open to question and I wonder if it has been challenged subsequently?

The case you refer to was London Borough of Richmond-upon-Thames v Secretary of State for the Environment, Transport and the Regions and Richmond upon Thames Churches Housing Trust [2000]. Here the case referred to a house divided into seven flats which was proposed to revert back to a single house, and the judge reasoned that a material change of use had occurred. He averred that an important factor in this ruling was that the change was contrary to planning policy relating to the protection of smaller units of accommodation.

I agree with you that this was a very controversial judgement but it was not challenged in the Court of Appeal due to the fact that the property was sold. Subsequently there have been no further developments, either in the courts or at appeal.

A single large family house was converted to four self-contained flats 13 years ago without any planning application being made. Is a planning application now required to revert to a single family house?

The conversion would have achieved immunity from enforcement some time ago using the four year rule. Use as four flats is now tantamount to the lawful use of the premises, and any enforcement action would not be successful. Therefore there is no automatic legal right of reversion to the previous lawful use as a single dwellinghouse, and it needs to be asked whether this change constitutes a material change requiring a fresh permission. Prior to 2000 it was the prevailing wisdom that the de-conversion of residential  property did not normally constitute a material change of use, but the court judgement Richmond-upon-Thames London Borough v Secretary of State for the Environment, Transport and the Regions [2000] turned this on its head. Here the de-conversion of a house had been the subject of an appeal decision where an inspector had ruled that there was no material change of use. On challenge of this decision it was held that in coming to a conclusion on the materiality of a change of use one had not only to assess the change in character from existing to proposed, but also any effect of the change on planning considerations. In this case the de-conversion of the property was contrary to local plan policies designed to protect the stock of small dwellings in the area. The current position is therefore that the change you propose may well not require permission, but much would depend on the planning policy situation in the particular location.

A house was converted to two flats about ten years ago and an enforcement notice was served requiring its conversion back to a single dwelling, which was complied with. A recent visit has revealed that the property has now been converted to four self-contained flats and the owner says this was done more than four years ago. Can you advice whether the council may take action against breach of the original notice, given that four flats have replaced two, and if not can the owner claim immunity under the four year rule?

The four year rule is applicable in the case of the creation of flats following a judicial hiatus in the early ‘90s.  However, if the flats do not have sufficient self-containedness to qualify them as "single dwellinghouses", the ten year rule will apply. Section 181 of the 1990 Act provides that an enforcement notice is a continuing obligation which is not discharged upon compliance. Therefore, if the original two flat conversion were later revived, the old enforcement notice would still bite. However, the four flat conversion you describe is likely to be a significantly different operation, and I very much doubt whether the original notice would now be of any effect against it.

My client owns a house that was converted in 1989 into two self-contained flats. A planning condition requires these to remain ancillary to the use of the original house and form part of its curtilage, to "maintain control over the use of the land". My client now wishes to sell one of the flats with an allocated area of garden. No physical changes to the dwellings or the shared curtilage are proposed. Taking into account the condition, is a sale possible without applying for planning permission?

It is difficult to comment on this without the full facts of the case and sight of the condition. However, in my view, it does not appear to have been correctly applied originally. Clearly, the flats could not remain ancillary, viz. subordinate, to the use of the original dwelling, as that use would cease as soon as it was subdivided and there is no primary use. I also think that the reason given for imposing the condition is vague and meaningless. Presumably, the intention was to preserve the character and appearance of the area by preventing the creation of a separate curtilage, with associated external paraphernalia.

Circular 11/95 sets out the tests which conditions should satisfy. In my view, that part of the condition relating to ancillary uses is ultra vires and, in particular, fails on the grounds that it is unenforceable. However, it would be prudent to seek to resolve this matter by letter from the planning authority, confirming that it would not take any action, or by means of a planning application.

My local planning authority frequently receives applications for new dwellings, usually flat conversions, where the quality of the accommodation is very poor in terms of floor area, light, outlook, shape etc. Up to recently, it seemed government was content to leave such matters to the market, but recent guidance in PPS3 might seem to suggest that such matters may be given increased weight when refusal is contemplated.. What is your view or the experience of other authorities in this matter? PD.

PPS3 Housing contains no specific reference to internal space standards as a material consideration, and restricts itself to very generalized statements relating to the achievement of high quality and well designed housing. Town planning has always had difficulty in rationalizing how the control of internal space or amenity standards within dwellings is relevant to its conventional environmental and land use concerns. As you say, in the past it has been the government’s approach that such matters are for developers and their clients to decide, although this policy has now disappeared from ministerial advice. However, this stance may still be advanced in appeal decisions. An example is (DCS Number 100-040-276), where an inspector felt that space standards in small units created by conversion were for the property market to determine. However, the inspector added the caveat that this would only be the case where living space did not fall below a "reasonably functional minimum"

Many urban local planning authorities are strongly of the view that no system of public administration should be presiding over the creation of living space which is sub-standard for all the reasons you state. As a result many local plans, or supplementary planning guidance (SPG) made under them, contain specific internal space and layout standards. Consequently inspectors are obliged to give them due weight at appeal, although they may not always accept such standards as prescriptive. An interesting appeal case (DCS Number 100-040-270) saw an inspector reason that SPG internal space standards should be treated cautiously as they did not reflect more recent government guidance that urged better and more effective use of land and higher densities.

My own view is that national guidance is badly needed as to where, in the light of current housing policies, the planning system should set the balance between paternalism and laissez-faire in the control of internal living standards. GH.

If permission is granted to convert a house to flats and the developer lays out a flat internally different from on the approved floor plans, what scope is there for enforcement and, given that once a flat is occupied its internal layout can be altered without needing planning permission, would enforcement action be reasonable? PB.

It might be argued that, unless external alterations are involved, a flat conversion is merely a change of use application and therefore, without a condition having been imposed requiring the layout to be implemented as approved, one cannot prevent a different layout being implemented. On the basis that the change of use and the internal works are one entity, however, I would suggest it would in theory at least be possible to take enforcement action if the implemented layout is different from the approved one. Having said that, if enforcement action were taken, the occupier has the fallback they could subsequently change their internal flat layout without requiring planning permission and at appeal this would be a strong argument for quashing any enforcement notice.

Within this context it would generally not be expedient to take enforcement action if the approved layout is not implemented unless there are land use or environmental impacts from the changes. An example where action might be appropriate is when a flat is adjacent to a noise generator and it would be desirable to have the kitchen and bathroom adjacent to this. In such instances, it would be appropriate to impose a condition requiring that the relevant aspect of the layout should be implemented as approved and possibly not subsequently altered. I would consider conditions controlling internal flat layouts should be rarely used as they inevitably restrict occupiers’ normal freedom. Furthermore, such conditions should only be imposed restricting the crucial element of the layout, not the whole layout, e.g. the location of the kitchen and bathroom in my example. Obviously if the deviations from the approved proposal included changes to the exterior of the building, e.g. an additional window which spoilt its appearance or overlooked a neighbour, there would be a clearer case for enforcement action.

What I have written here has been worked out from basic principles and I have little direct experience of such an issue and am not aware of any relevant appeal decisions. If any readers have encountered a relevant case or have other views, I would be most interested to hear from them. JH.


Do you consider the number of bedrooms shown on the approved plans could be reduced or increased without requiring planning permission provided there were no alterations to the exterior of the building? HG.

Further Response

As I indicated in my response, my answer was worked out applying basic principles of logic and I had little direct experience of such issues. As far as I can see, however, for the reasons I gave in my previous answer, a change in the number of bedrooms provided would need to be treated similarly to any other deviation from an approved layout. I did, however, ask if other readers had direct experience on these issues and would be interested to hear if any have. JH.

Further Response

In relation to reducing or increasing the number of bedrooms shown on approved plans, it is sometimes beneficial to show a certain number of bedrooms on a layout with a view to altering it at a later stage without requiring a further planning permission. Once a building is substantially complete or the units completed to a certain stage, then any further alterations or subdivisions would not constitute development and planning permission would not be required and we would tend not to refer such matters to the planning authority. I agree that if alterations are made during the early stages then perhaps a consent would be required for a deviation; the trick therefore is to make any alterations much later. KP.

Further Response

I would agree that if a conversion is completed and then the layout is changed without external alterations, planning permission would not be required unless a planning condition prevents this. If the layout is changed during construction, however, there is technically a breach of planning control, but in many instances, for reasons I explained previously, it would not be reasonable for authorities to enforce.

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