London Borough of Lambeth v Secretary of State for Levelling Up, Housing and Communities

In determining whether amalgamating dwellings amounts to a material change of use, the decision-maker must assess whether the change alters the character of the use and whether the loss of existing housing has significant planning consequences. Development-plan policy is relevant but is not determinative of that statutory question.

Policies seeking to increase housing supply, or safeguarding existing housing by reference to those policies, do not prohibit amalgamations unless they do so in clear terms. Supporting text may assist interpretation but cannot itself create policy. The significance of a housing loss is a matter of fact and degree, assessed individually in the circumstances of the proposal. Judicial review does not permit the court to substitute its planning judgment for that of the decision-maker.

The claimant sought planning statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decisions allowing two appeals concerning the proposed amalgamation of two adjoining flats into one dwelling.

On the first appeal, the Inspector granted a certificate of lawfulness of proposed use or development, concluding that the amalgamation would not constitute development because it would not involve a material change of use. On the second, he granted planning permission in the alternative. The claimant challenged the decisions on alleged errors in interpreting the development plan, applying section 55, assessing the significance of the housing loss, and considering previous appeal decisions.

1. Disposition. The application for planning statutory review was dismissed. The Inspector was entitled to determine the planning-permission appeal in the alternative, although it had become academic once the certificate of lawfulness appeal succeeded.
2. Development-plan interpretation. Lambeth Local Plan Policy H3 safeguarded existing self-contained C3 housing only in accordance with the relevant London Plan policies. London Plan Policies H1 and H2 pursued increased housing supply and did not specifically prohibit amalgamations. The reference to amalgamations in supporting text was not itself policy. London Plan Policy H8 required replacement housing at existing or higher densities with equivalent overall floorspace, but did not prohibit amalgamations. In the absence of a definition or guidance on density, its application was a matter for planning judgment.
3. Material change of use. The principles summarised in R(Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government applied. The need for housing was a planning purpose relating to the character of land use. The net loss of one housing unit was a planning consequence relevant to materiality. Whether that consequence was significant remained a fact-and-degree question for the decision-maker. Policy addressing the consequence was relevant but not determinative.
4. Application to the proposal. The Inspector properly considered housing delivery, the effect of amalgamations on supply, the continuing provision of a larger family dwelling, and the low number of amalgamation applications. His conclusion that the loss of one unit was not significant was a lawful planning judgment, not an irrationality or legal error.
5. Previous decisions. Previous appeal decisions may be material if drawn to the decision-maker’s attention. There was no general duty to search for them. Although the claimant should have notified the Inspector of the three decisions, they would not have altered the outcome because they addressed planning permission, not the section 55 threshold, and were materially less reasoned.

This was a first-instance planning statutory review. The Inspector’s decisions dated 13 October 2023 were upheld and the claim was dismissed.