Two Become One

Historically whether planning permission was required for the amalgamation of units has been a grey area for planning lawyers. However, it was a question which was seldom asked. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation. This article traces the recent evolution of decision-making regarding amalgamation.

When is planning permission required for a change of use?

Under s55 Town and Country Planning Act 1990 (TCPA) a change of use requires planning permission if it is a material change of use. While there is no exhaustive list of what constitutes a material change of use, s55(3) is clear that the conversion of a single unit into several units is a material change of use which requires planning permission. However, s55 is silent on the reverse position where two or more dwelling houses are merged to form a lesser number.

Certain operations of uses of land are not regarded as 'development' by virtue of s55(2) TCPA. Under s55(2)(f) TCPA and Art 3(1) of the Town and Country Planning (Use Classes) Order 1987 (the Use Classes Order), where a building is used for a purpose of any class specified in the schedule to that order, the use of that building for any other purpose within the same class shall not be taken to involve development of land. None of this makes clear where that leaves amalgamation. Is permission required or not?

Is the amalgamation of units a material change of use which requires planning permission?

The leading case on amalgamation is Richmond upon Thames London Borough Council v Secretary of State for the Environment, Transport and the Regions [2000]. Richmond concerned the refusal by the local planning authority, and then the subsequent grant on appeal, of a certificate confirming that the change of use of seven self-contained flats into a single dwelling house would be lawful. The local planning authority refused the certificate on the ground that the proposal constituted development under s55 TCPA. The applicant contended that the proposed change of use would not, as a matter of fact and degree, amount to a material change of use but, even if it did, it would be exempted from being 'development' by the Use Classes Order.

In reaching a decision, Lockhart-Mummery QC held that the extent to which a particular use fulfils a legitimate or recognised planning purpose (in terms of a purpose relating to the character of the land) is relevant in deciding whether a change from that use is a material change of use. He held that the amalgamation of these units gave rise to a loss of a particular type of (low-cost) accommodation, which was a relevant factor to be taken into account in considering whether the change of use was material. His reasoning followed Mitchell v Secretary of State for the Environment [1994], in which Saville LJ stated in the context of the determination of planning applications:

... it is undoubtedly the law that material...

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