Many readers are no doubt aware that section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used. However, there is no provision in the 1990 Act itself dealing with the converse, where two or more separate dwellings are combined to form a single dwelling. In principle, it might well be argued that such an amalgamation of planning units is covered by section 55(2)(f), because this refers to buildings which are used for a purpose of any class specified in the Use Classes Order and (as a result of the amalgamation) the building is being used for other purposes within the same class.
However, the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 suggested that a change in the character and impact of the use in planning terms might nevertheless amount to a material change of use. This need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning unit provided. The Richmond case was concerned with the conversion of a property from seven flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.
This point had previously been made in the Court of Appeal’s decision in Wakelin v. SSE [1978] JPL 769. That case confirmed that the creation of a new planning unit out of an existing planning unit would not always result in a material change of use, but it may well do so if it is (to use the words of Lord Denning) “not in accordance with good planning policy having regard to the surrounding circumstances”. Wakelin was in fact concerned with the creation of a separate dwelling out of an existing dwelling (now covered by section 55(3)(a)), but it clearly applies (as does Richmond) to other types of use.
Richmond involved the loss of no fewer than six separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use – in other words, it was not simply the environmental effect of the change that had to be considered but also its effect in relation to planning policies seeking to resist the loss of small residential units. On the other hand, it should be clearly understood that the amalgamation of two planning units, for example by combining two existing dwellings into a single unit, need not automatically be treated as a material change of use amounting to development. This will have to be a matter of objective judgment depending on the particular facts in each case.
It seems that a distinction is to be made between, on the one hand, situations such as those in Wakelin and in Richmond, where a planning unit is either subdivided or amalgamated with another planning unit and, on the other hand, the effect of a change within the planning unit where, both before and after the change, the use or combination of uses falls within one and the same use class. The latter is illustrated by the judgments in Brookes & Burton Ltd v. SSE [1977] 1 WLR 1294 and Eastleigh BC v. FSS [2004] EWHC 1408 (Admin).
I confess that I have always had misgivings about the Richmond judgment, as it does not seem to sit comfortably with section 55(2)(f), but I have explained above how it may be rationalised by arguing that section 55(2)(f) impliedly refers to the use of a single planning unit, whereas in a case such as Richmond one is dealing with two or more pre-existing planning units, so that (the argument would go) section 55(2)(f) does not apply in such a situation.
My reason for discussing the Richmond case now, some 15 years after it was decided, is that a planning inspector in dismissing a recent LDC appeal (under section 195) has relied on Richmond as the basis for the rejection of the lawfulness of the development in question. The appeal had clear similarities with the Richmond case. It involved a six-storey house in Central London that had been divided some time ago into four flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms.
This necessarily required some consideration of policy issues, including the NPPF and the London Plan, both of which seek significantly to increase the supply of housing in the area. The mix and size of the current residential units in the building was therefore relevant from this point of view, and these were more suited to meeting identified housing needs than a single large dwelling would be. These considerations were sufficient, in light of the judgment in Richmond, to bring about a significant change in the character and impact of the use in planning terms, and thus would constitute a material change of use, and would not therefore be lawful.
© MARTIN H GOODALL
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