Deconversions: Is it Development?

1st May 2018

A recent appeal decision in the London Borough of Lambeth considered the refusal of two separate applications for lawful development certificates to allow the ‘deconversion from two flats to one dwelling’ (APP/N5660/X/17/3174957 & APP/N5660/X/17/3174959). Both applications related to the same property address, but for the change of use of separate pairs of flats on different floors.

Bell Cornwell previously published an insight into the RBKC Amalgamations Policy, a similar policy, which can be found here.

The main issue considered by the Inspector was whether the amalgamation of the two pairs of flats into single flats constitutes ‘development’ and therefore if the Council’s decision to refuse the two Lawful Development Certificates was sound.

It was noted by the Inspector that Section 55 of the Town and Country Planning Act 1990 (as amended) defines ‘development’ as including the making of a material change of use of the land, but that this does not expressly include the scenario where it is proposed to convert 2 dwellings into 1. Indeed, the Appellant contended that works needed were all internal, which did not need consent, and the use would remain in Class C3 (Dwellinghouse), so would not be different from existing C3 use as separate flats.

In considering his decision, the Inspector found that regard could be had to the development plan policies relating to the loss of housing stock and housing standards, as held by the courts in the case of RB Kensington and Chelsea v (1) Secretary of State for Communities and Local Government (2) David Reis (3) Gianna Tong [2016]. In doing so, he reasoned that the loss of residential units through amalgamation could have a significant impact and that “…the very existence of the relevant development plan policies, which seek to safeguard existing housing and housing standards, indicate that there are significant planning consequences in these cases”. Consequently, he found that the proposed changes of use could be considered material and that planning permission was required. He dismissed both appeals.

For the Appellant the result was made less painful by the fact that planning permission was granted in the meantime, before the appeal decision was issued. That was however irrelevant in respect of the Lawful Development Certificates and ultimately the decision was made on the basis that proposed change of use could have conflicted with the local authority’s development plan. This was theoretical, as no actual harm was identified, but it does confirm that the decision maker should place weight on the development plan where there may conflict with adopted policies, particularly those designed at safeguarding housing.

The consequences of decisions like this, and the Kensington case before it, is that the outcome can vary widely amongst different authorities. Had LB of Lambeth Council not had policies to protect against the loss of residential units, the Inspector could have just as easily concluded that the proposed deconversions were not development and allowed the Lawful Development Certificates.

This fragmentation of decisions is not helpful for creating certainty in the planning system. On the contrary, it demonstrates that planning principles cannot be applied uniformly. Every case must be determined on its individual merits.

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