In Royal Borough of Kensington and Chelsea v Secretary of State for Communities and Local Government [2017] EWHC 1703 (Admin) and EWHC 1704 (Admin), the High Court has confirmed the need for care on schemes to amalgamate homes. Neil Cameron QC quashed two decisions to grant of permission on appeal to amalgamate four flats in one case and two cottages in the other.
Planning permission was sought for the change of use on the basis of 2014 development plan policies treating the loss of homes as material. The applicants argued that the loss was de minimis in light of the authority’s excess supply above the five-year HLS requirement. The High Court confirmed in R (on the application of Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government and others [2016] EWHC 1785 (Admin) that decisions on materiality should have regard to general housing need evidence where there is no threshold in the policy.
The authority’s position was that the supply position was “very marginal” (with a buffer of less than 20 units that would be eroded by amalgamations, which had not been factored in to net supply calculations). The inspector had regard to 46 homes returning to use from being vacant. He deducted them from the supply requirement, but not the supply pipeline figures (overstating the pipeline as a result). The appellants defended the decision on the grounds that the error had neither caused unfairness nor been decisive in the decision.
Quashing the decisions, the judge held (applying E v Secretary of State for the Home Department [2004] EWCA Civ 49) that the issue was whether the mistake had been material to, not decisive in, the decision. He refused to exercise the discretion not to quash, on the basis that it was not possible to say that the inspector would necessarily have reached the same conclusion without the error (applying Simplex GE Holdings v Secretary of State for the Environment (1989) 57 P&CR 306). He also accepted that errors in the supply calculation coming to light after the decision were material to the exercise of the discretion.
The High Court also quashed the grant of permission a week later (CO/4492/2016) where the owners had obtained a certificate of lawfulness for amalgamation confirming that it was not material granted before the advent of a policy suggesting that it is. Lang J held that the inspector allowing the appeal against the subsequent refusal to grant permission for the same changes “gave too much weight” to the certificate in concluding that the change of use would not harm housing supply.
The decisions illustrate changes in planning policy and authority attitudes to changes of use that reduce housing supply. They also show the risks of relying on certificates of lawfulness for matters that are sensitive to changes in circumstance.
Roy Pinnock is a partner in the planning and public law team at Dentons
