Legal Viewpoint: Ruling clarifies position on amalgamation of dwellings

The amalgamation of two or more housing units remains the subject of heated debate. Under section 55 of the Town and Country Planning Act 1990, a material change of use constituting development occurs where one unit is divided into two or more, but the law is silent on the position where multiple dwellings are converted into a single one.

The courts have previously held that amalgamation of two or more units would not be a material change of use unless or until there is a change in the character of the use of land, which is a question of fact and degree. In general, councils have tended to conclude that a material change results from the combination of numerous units, but not necessarily from amalgamation of two or three.

A recent High Court ruling on a case from west London provides some helpful clarification. In August 2014, the council involved changed its stance, which previously sought to resist development resulting in a loss of five or more units, to apply to amalgamation of any number of units. An edict was sent round the planning department requiring applications for the combination of any number of units generally to be refused, despite there being no change in the law or local plan? policy to promote this altered stance.

Applications for a certificate of lawfulness and for planning permission for amalgamation of two flats were then refused by the council, but granted on appeal. The council challenged both decisions. It was successful in its challenge against the decision to grant the certificate, on the grounds that such an amalgamation could constitute a material change of use and so would be subject to planning control. However, the planning application decision stood up to the legal challenge. In court, the council helpfully confirmed that amalgamation of up to five units still technically? complied with its local plan policy. The ruling also confirmed that the appeal inspector rightly concluded that the London Plan is concerned about loss of floorspace, not loss of units.

The case highlights the need for amalgamation applications to consider the effect on dwelling numbers in the relevant council area. Where such applications accord with local and wider planning policies, in areas where housing delivery is strong, they should pass over this hurdle, as there would be no discernible effect on housing supply. But the window of opportunity for amalgamations may be closing in some areas, as some councils are likely to tighten up their local planning policies at the next opportunity.

R (Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government and Others; Date: 15 June 2016; Ref: [2016] EWHC 1785 (Admin)

Helen Hutton is a senior associate at Charles Russell Speechlys

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