London borough loses appeal over grant of lawful development certificate and planning permission for conversion of two flats into one

The High Court has rejected an appeal by the London Borough of Lambeth against a planning inspector’s decision that it was wrong to refuse permission to convert two flats into one.

Mrs Justice Lang dismissed all six grounds argued by the council and concluded the inspector had correctly interpreted planning policies.

Local resident Kathryn Van Rooyen had applied to merge two adjacent flats by the removal of an internal wall so as to allow her parents to live with her. No external changes would have been needed.

Lambeth refused this, arguing the change would result in the loss of a self-contained unit and no exceptional circumstances applied.

Ms Van Rooyen successfully appealed over both refusal of planning consent and granting a certificate of lawful development.

Mrs Justice Lang noted the inspector identified the main issue was whether the application would amount to a material change of use, and had concluded it did not.

He had considered the London plan and Lambeth’s local plan and rejected the council’s submission that the amalgamation of separate flats into large homes was leading to the sustained loss of homes, as there was a need for larger family dwellings and the number of applications for amalgamations was proportionately very small.

The inspector said the loss of a single unit would not result in any planning consequences of significance. He also found no conflict with planning policies.

Lambeth’s objections included that the inspector made an error of law in his interpretation of the development plan policies, and should not have treated the effect of a decision on an individual appeal site as an insignificant planning consequence. It also said he failed to take into account other relevant planning appeal decisions.

These decisions were earlier ones where Lambeth had refused consent to merge dwellings.

Lang J said: “In my view, they were capable of being material considerations if they had been brought to the attention of the inspector.

“Lambeth failed to bring these decisions to the attention of the inspector in this appeal. In my view, it could and should have done so, in accordance with PINS guidance.”

She added: “Lambeth knew that these appeals had been lodged before the deadline for submissions in this appeal.”

The judge said: ”In my view, neither the inspector nor the Secretary of State was under a legal duty to conduct a general search for other appeal decisions concerning Lambeth's housing policies. The expectation was that the parties would draw any such decisions to the attention of PINS.”

Lang J said the outcome would have been the same even if the inspector had been aware of the earlier decisions as none of these cases had considered whether the proposed amalgamation was a material change of use. 

Ben Du Feu, of Cornerstone Barristers, who acted for the Secretary of State, said the judgment showed the inspector correctly applied the principles set out by Holgate J in RBKC v SSCLG [2016] EWHC 1785 (Admin) in determining whether the amalgamation constituted a material change of use, and had been entitled to find that the loss of a single unit of accommodation, in the context of the current housing delivery in the Lambeth, would not be a planning consequence of significance.

Mark Smulian