The Royal Borough of Kensington and Chelsea are changing their approach to the amalgamation of dwellings into fewer units. We break down the complexities of the issue.
The prospect of creating a larger dwelling without the need for planning permission can sound like an attractive proposition. The good news is that the amalgamation of two or more dwellings into one may not be development, as defined under Section 55 of the Town and Country Planning Act 1990.
Ok, this is only a half truth, as while you do not need consent to carry out any internal works (excluding listed buildings), the case of The London Borough of Richmond v Secretary of State for the Environment, Transport and the Regions and Richmond upon Thames Churches Housing Trust QBD 28 March 2000 found that amalgamation is nevertheless capable of being a material change of use.
In the Royal Borough of Kensington and Chelsea (RBKC), their long-established policy position has been that development resulting in a loss of five or more units will be resisted. However, the amalgamation of residential units, where below this threshold, was accepted as permitted development. In August 2014, RBKC took the decision to change its position and its interpretation of the Richmond Case, to support its view that amalgamations have a detrimental impact on their housing stock. It began to refuse applications for amalgamations of any number of units. This was despite there being no change in their policy or indeed a change in the law. Instead, they sought to rely on other local and London Plan policies that seek to protect residential floorspace. Almost all applications for either certificate of lawfulness or planning permission were refused from that point onwards.
Appeals were then lodged and the response from Inspectors was in many cases to reverse the Council’s decision to refuse. In allowing appeals they concluded that the amalgamation of the dwellings was not a material change of use and accorded with the Development Plan. Both planning permission and certificate of lawfulness could, therefore, be approved.
The Council moved to challenge some of these decisions in the High Court (The Queen on the application of Royal Borough or Kensington and Chelsea v Secretary of State for CLG and David Reis and Gianna Tong  EWHC 1785) and were successful in overturning an Inspector’s decision to grant a certificate of lawfulness, on the basis that amalgamation could constitute a material change of use. However, the Court also found that the amalgamation of up to five units nevertheless complied with the Council’s development plan policy. The Inspector’s grant of planning permission was therefore upheld.
As a result, RBKC continue to refuse nearly all certificate of lawfulness applications for amalgamations, but they are also seeking to introduce a new policy as part of their draft Local Plan Partial Review. The new policy resists amalgamations unless it will only result in the net loss of one unit and the total floorspace of the new dwelling created will be less than or equal to 170sqm gross internal area (GIA). In addition, the Council will require applicants to enter into a Section 106 agreement to ensure the resultant units are not further amalgamated in the future. If adopted in the proposed form, the new policy will firmly close the door on many proposals for amalgamations, unless other material planning considerations can be demonstrated. The window of opportunity to push through applications in RBKC for amalgamations of more than 2 residential units is therefore coming to an end but hopefully their consideration of such cases has finally found its resolution.
Public examination hearings on the Council’s proposed alterations to its Local Plan, including on amalgamations, are due to take place on 27th and 28th February, and the 1st, 2nd, 12th, 15th and 16th March 2018. It adoption is anticipated in summer 2018.
Senior Principal Planner, Jonathan Jarman.