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

Hearing dates: 14 & 15 May 2024

Approved Judgment

This judgment was handed down remotely at 10.30 am on 10 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Claimant applies for Planning Statutory Review, pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), of the decisions of an Inspector, appointed by the Defendant, dated 13 October 2023, to allow the two appeals of the Interested Party (“IP”) against the decisions made by the Claimant (“Lambeth”), and to grant a Lawful Development Certificate (“LDC”) on Appeal A, and planning permission on Appeal B, for the proposed amalgamation of Flats 26 and 27, Peninsula Heights, 93 Albert Embankment, London SE1 7TY into one dwelling.

I granted permission on the papers on 1 February 2024.

Planning history

The IP holds a 999 year lease of Flat 27 and has resided there with her family for some 15 years. It is her main residence. The IP has recently purchased a 999 year lease of Flat 26, which adjoins Flat 27 on Floor 7 of the block of flats. The freehold titles are held by Peninsula Heights Freehold Limited, of which the IP is a director and shareholder, in common with other leaseholders.

The IP's proposal is to amalgamate the two Flats by removing an internal wall between the family room in Flat 27 and a bedroom in Flat 26. No external works are required and both existing external entrance doors would be retained. The result would be a single four-bedroom flat, in place of a three-bedroom flat and a 2-bedroom flat. The amalgamation will mean that the IP's elderly parents will be able to live with the IP, should they no longer be able to live on their own.

On 17 May 2022, Lambeth refused the IP's application for planning permission, made on 5 November 2021, to amalgamate Flat 26 and 27 to form a single dwelling. The reason given was that:

“The proposed development results in the loss of an existing self-contained unit. No exceptional circumstances have been demonstrated, therefore the development fails to comply with Policy H3 of the Lambeth Local Plan (2021)”.

On 23 May 2022, Lambeth refused the IP's application for a LDC, which was made on 4 November 2021. The decision notice stated:

“The London Borough of Lambeth hereby certifies that on 5 November 2021 (the date of this application) the use/operations as described in the First Schedule to this certificate ….. would not have been lawful within the meaning of section 191 of the Town and Country Planning Act 1990 … for the following reason(s):

1. the proposed amalgamation of Flats 26 and 27 at Peninsula Heights, 93, Albert Embankment into a single unit of residential accommodation would amount to a material change of use for the purposes of section 55 of the Town and Country Planning Act 1990 for which a grant of planning permission would be required.”

The Inspector's decisions

The Inspector refused the application for a Hearing and determined the appeals on 13 October 2023, on the basis of written representations, with a site visit on 26 June 2023.

Appeal A was made under section 195 TCPA 1990, against the refusal of a LDC. The Inspector allowed the appeal.

Appeal B was made under section 78 TCPA 1990 against the refusal of planning permission. The Inspector allowed the appeal.

On Appeal A, the Inspector identified the main issue was whether the proposed use would amount to a material change of use, and therefore development for the purposes of section 55(1) TCPA 1990 (Decision Letter paragraph 3 (“DL/3”)).

The Inspector found, at DL/13–14, that the existing primary use of the land was a lawful residential use. The two flats were, at present, physically and functionally separate and therefore comprised separate planning units. The pattern of use, in terms of the comings and goings associated with a single dwelling, would be of a similar level to the two separate flats, given the number of people they would comparably be able to house.

The Inspector considered the London Plan (March 2021) and the Lambeth Local Plan 2020–2035 (September 2021). He concluded:

i) The purpose of London Plan Policy H1 and H2 is to increase the overall supply of housing. They do not specifically seek to resist amalgamations (DL/20). However, the amalgamation would result in a net loss of self-contained residential units, from two to one (DL/24).

ii) London Plan Policy H8 states that the loss of existing housing should be replaced by new housing at existing or higher densities with at least the equivalent level of overall floorspace. While the proposal may result in the loss of housing, it will be replaced with housing with the equivalent amount of floorspace (DL/21).

iii) Lambeth Local Plan Policy H3 refers to self-contained C3 housing being safeguarded in accordance with the London Plan. Since the London Plan contains no policies which restrict amalgamations, then Policy H3 does not prohibit amalgamations (DL/23). However the London Plan does require the Borough to increase its supply of housing. This proposal will result in a net loss of self-contained C3 housing (DL/24).

Having considered the relevant statutory provisions and the authorities, the Inspector directed himself that the particular site and its circumstances must be considered individually in the context of the relevant development plan policies. The Inspector accepted that the need for housing was a planning purpose which related to the character of the use of land, and that the amalgamation would have planning consequences as a result of the net reduction of one unit from the Borough's housing stock. The question in this case was whether the planning consequences were of significance.

The Inspector considered a substantial amount of evidence on Lambeth's housing needs and supply of housing. He rejected Lambeth's submission that the amalgamation of separate flats into large homes was leading to the sustained loss of homes in the Borough (DL/33–34). He found that there was still a housing need for larger family dwellings (DL/35–37). He also found that the number of applications for amalgamations was proportionately very small (DL/40–41).

The Inspector concluded, at DL/43 — DL/45:

i) The loss of a single unit, in the context of current housing delivery in the Borough, would not be a planning consequence of significance.

ii) The proposed deconversion of the two flats to a single dwelling would not result in any significant difference in the character of the activities, as a matter of fact and degree, nor would there be any planning consequences of significance as a result of the change.

Therefore the Inspector granted a LDC in the following terms:

“It is hereby certified that on 4 November 2021 the use described in the First Schedule hereto ….. would have been lawful within the meaning of section 191 of the Town and Country Planning Act 1990 … for the following reason:

The proposed deconversion of two flats to a single dwelling would not be a material change of use. Consequently, the proposal would not constitute development under S55(1) of the Act and therefore would have been lawful at the date the LDC application was made.”

On Appeal B, the Inspector identified the main issue as the effect of the development on the supply of housing in the Borough (DL/49).

The Inspector relied on his earlier finding that the proposed net loss of a single dwelling would be a planning consequence of no significance (DL/50).

The Inspector found as follows:

i) there would be no conflict with London Plan Policy H1 as the proposal would not materially affect Lambeth's ability to boost the supply of housing (DL/51);

ii) there would be no conflict with London Plan Policy H2 as it would not materially affect Lambeth's ability to increase the contribution of small sites to meeting housing need and there was no evidence that the proposal would lead to a sustained loss of homes or failure to meet the identified requirements of large families (DL/51);

iii) there would be no conflict with London Plan Policy H8 as there would be no loss of residential floorspace (DL/52);

iv) there be no conflict with Lambeth Local Plan Policy H3 as housing would be safeguarded in accordance with London Plan policies (DL/52).

The Inspector therefore concluded that the proposal would not have a harmful effect on the supply of housing in the Borough and would not therefore conflict with the development plan as a whole (DL/57).

Planning permission was granted for the amalgamation of Flats 26 and 27 to form a single dwelling.

Legal framework

(i) Applications under section 288 TCPA 1990

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some...