See if you can make sense of these two decisions, issued on the same day in the same London borough.
In (DCS Number 400-010-690) an inspector declined to issue a lawful development certificate for the amalgamation of two flats into one, agreeing with the council that it was a material change of use within the meaning of section 55 of the Act and was therefore development requiring planning permission. The inspector referred to Richmond upon Thames v SSETR , which concerned an application for a LDC for the change of use of a property from seven flats to a single dwellinghouse. In that case, the High Court adopted the principle that “The extent to which a particular use fulfils a legitimate or recognised planning purpose is relevant in deciding whether a change from that use is a material change of use”. In the current case both sides had submitted counsel’s opinion, the appellants’ counsel noting that there would be no effect on the residential character of the area. The council nevertheless took the view that a reduction in the number of flats in the building from four to three would be material because it would involve the loss of a residential unit at a time when there was a pressing need to retain the existing housing stock in the borough. The inspector agreed that, in line with Richmond, the use of the property as four flats rather than three fulfilled a legitimate and recognised planning purpose of sufficient significance to make the proposed amalgamation a material change of use.
On the other hand…..
In (DCS Number 400-010-693) a lawful development certificate was issued for the amalgamation of three flats into one dwellinghouse, the inspector finding that it would not constitute a change in the character of the use of the building or the area. Again, the council took the view that any amalgamation which includes the loss of a unit will be development which requires planning permission, reflecting increasing housing targets and the impact that amalgamation was having upon the progress towards achieving these. The inspector, however, considered that this failed to take account of the principal test established through the courts, particularly in Panayi v SSE , which is the effect on the character of the area. He concluded that the council’s approach flies in the face of court authority and suggests that general concerns about housing provision and the loss of small units, not even supported by an adopted local plan policy, should trump any material consideration of the impact on the character of a specific area. He was satisfied that the proposed use would not result in a material change in the character of property or the residential area and on this basis would not amount to a material change of use.
The following DCP chapter is relevant: 11.1112