Whether planning permission is required or should be granted for the amalgamation of two or more housing units remains the subject of heated debate in some parts of the country, especially in areas such as the Royal Borough of Kensington and Chelsea (“RBKC”). The resulting loss of housing units is a particular concern in areas of strong housing need.

Under section 55 of the Town and Country Planning Act 1990, a material change of use requiring planning permission 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 the amalgamation of two or more units would not be a material change of use and therefore would not require planning permission 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 of use results from the combination of numerous units, but not necessarily from amalgamation of two or three. Planning policies resisting amalgamations resulting in the loss of more than a certain number of units are relevant in establishing whether proposals would constitute a material change of use and, if so, whether permission should be granted.

A recent High Court ruling on an RBKC case provides some helpful clarification on the issue. In August 2014, the Council had suddenly changed its stance, which had previously been to resist development resulting in a loss of five or more units. An edict was then sent around 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 planning 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 were granted on appeal in this case. 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 then be subject to planning control. However, the decision to grant planning permission planning stood up to the legal challenge. In Court, the Council helpfully confirmed that the amalgamation of up to five units still technically complied with its local planning policy. The ruling also confirmed that the appeal inspector was right in concluding that the London Plan is concerned about loss of floorspace, not loss of units.

The case highlighted the need for amalgamation applications to consider the effect on dwelling numbers in the relevant authority 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, unfortunately, and despite this ruling, this is not happening in every case.

The window of opportunity for amalgamations to be approved in some areas is in fact already closing, with some councils in the process of changing their local planning policies. RBKC, for example, is currently refusing all certificate of lawful use applications and almost all planning applications for residential amalgamations, despite no changes having been effected yet. It is due to publish its proposed new policy dealing with amalgamations of residential units, early in 2017. It is expected that the new policy will allow the amalgamation of just two units, with a total area of up to 170m2, but the draft policy is keenly awaited.

R (Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government and Others: 15 June 2016; [2016] EWHC 1785 (Admin). We acted for the flat owners in this case.