Amalgamation of flats into houses: Is it lawful?
Planning permission is required for the carrying out on land of any development (Section 57(1) of the TCPA 1990). Development is defined as the "carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land" (Section 55(1) of the TCPA 1990).
As a general rule, planning permission is not required for internal works to a building. Section 55(3) of the TCPA 1990 also specifically states that a change from one dwellinghouse (which includes flats) to two or more dwellinghouses constitutes a material change of use. However, there is no definition or guidance with regard to the reduction in the number of residential units through the merger of two or more dwellinghouses to a lesser number. Instead, the determination is based on fact and degree arguments and this precedent for legal principle has been established in the courts and, in particular, two high profile cases.
The first case London Borough of Richmond v Secretary of State for the Environment, Transport and the Regions and Richmond upon Thames Churches Housing Trust QBD 28 March 2000. In this case, the High Court held that an inspector, in granting a lawful development certificate to convert a property used as seven flats to a single dwellinghouse, had erred in examining only the external manifestations and not the nature of uses before and after. The change gave rise to planning considerations including the loss of a particular type of accommodation which was a material consideration and should have been taken into account in determining whether a material change of use had arisen. In essence, this case held that whether planning permission is required for amalgamation of dwellings 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 evidence of need.
In the case of R on the application ofRB Kensington and Chelsea v (1) Secretary of State for Communities and Local Government (2) David Reis (3) Gianna Tong [2016] EWHC 1785 - where the amalgamation of two flats (Flats 1 and 3, 44 Stanhope Gardens, London SW7 5QY) into one self-contained flat was proposed - the Court also considered the Richmond case and referred to the principles established in that case. The judgement states:
“In the present case, the Council has reached the view at officer level that the rate at which the housing stock is decreasing in the Borough through amalgamations is jeopardising the achievement of housing targets, which targets have been increased since the adoption of the relevant Local Plan policies. The Council rightly says that the mere absence of any policies in the existing Local Plan to deal with those circumstances is not a sufficient basis in itself for concluding that they are of no significance to the application of planning control. In my judgment, it is plain that the Inspector, in his decision, did not get as far as considering issues of this kind because he wrongly treated the absence of policy support as determinative of the issue he was obliged to decide under section 55(1).”
On the basis of the latest court case precedent set out in the above case law, the lawfulness of the amalgamation of two flats into one larger dwelling is a matter of fact and degree and has to have regard to housing supply and policy judgement in the area. This is particularly pertinent in the context of the London Plan and different Borough housing land supply targets. In 2016, the RBKC policy team clearly felt the pressure on the supply of family housing was so acute, they could not allow the conversion of two good sized flats into one larger home as it would result in the loss of one family home in the Borough. That one home would potentially be lost forever.
However, in other boroughs, they have assessed their capacity differently. There are recent and relevant cases whereby the London Borough of Camden has confirmed the amalgamation of two dwellings is lawful by virtue of the housing supply considerations.
In every case, it is possible policy will change as a result of the proliferation of amalgamations and changes to the character of the area. Depending on the Borough, it is often possible to submit a Certificate of Lawfulness to confirm the amalgamation is deemed not development in consideration of the fact and degree arguments.
If you do have a potential property you are looking to convert back into a single dwellinghouse and are not sure of the planning considerations, please give WEA Planning a call or send us an email/contact form to discuss your project.