2 become 1

Roderick Morton analyses an appeal from an inspector’s decision to grant both a Lawful Development Certificate (LDC) and planning permission for the amalgamation of two flats into one in a residential block of flats by the side of the Thames in Lambeth.

The decision in LB Lambeth v SSLUHC [2024] EWHC 1391 confirms that there is no prohibition in the London Plan on amalgamations and that whether any such amalgamation is a material change of use is a matter for the decision maker and may vary in each case.

The owner had owned and lived in one 3 bed flat for many years. She purchased an adjoining 2 bed flat and sought planning permission to amalgamate them into a single 4 bed flat. She also sought an LDC that the development was lawful. The council concluded that the amalgamation was a material change of use so refused the LDC. It concluded that the development was contrary to policy protecting housing stock so refused permission. Both of these decisions were overturned by the inspector on appeal.

As a reminder, a change of use of a building from one unit into two is expressly made development by s55(3)(a) TCPA 1990, whether or not it would otherwise be material. But an amalgamation from two units into one is only development if it is a material change of use.

On the LDC appeal, the inspector concluded that there was no material change of use. The conclusion was upheld by the court. 

The council argued that the London Plan, and therefore its local plan, restricted amalgamations; any such amalgamation must therefore be material. The London Plan does not, said both the inspector and the court, prohibit amalgamations but counts them as housing losses. It also encourages councils to resist amalgamations only where there is evidence that it is leading to sustained loss of homes and not meeting the identified requirements of larger families; this is not to be read as a general prohibition on amalgamations. If councils want a prohibition, they need to write one into their local plans.

London Plan policy H8 provides that a loss of housing should be replaced by new housing at existing or higher densities with at least the same floorspace. But density is undefined in H8. London Plan D3, which offers a way to measure density, does not apply to H8, nor does it apply to small scale proposals, the court decided. The effect on density is therefore simply a matter of planning judgment. The court upheld the inspector’s conclusion that, while there was a net loss of housing, there was no loss of floorspace and only a limited loss of bedspace so no loss of density.

The council said that the inspector’s conclusion that the net loss of housing was insignificant was irrational; every loss mattered if the council was to deliver its housing targets. The court concluded that the inspector had, in fact, looked carefully at the point, and had examined housing delivery and the loss of a unit on that delivery. That the council disagreed with the inspector’s conclusion did not make it irrational. 

One final ground of appeal (though in fact the first to be considered) was that, having found that there was no material change of use on the LDC appeal, it was irrational of the inspector to grant permission on the s78 appeal. After all, only development requires permission. If there is no material change of use, there is no development. If there is no development, there is no power to grant permission.

The court said that, while this may be true, the applications and the appeals were brought independently of one another, on an “in the alternative” basis and on a “without prejudice” basis. The inspector was entitled to reach different conclusions on each. 

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.