Accommodation — Sheltered housing for the elderly — Planning permission conditional upon sole use of accommodation for the elderly — Temporary removal of condition — Enforcement notice — Inspector rejecting appeal against notice — Whether inspector failing to take into account relevant matters — Section 288 of Town and Country Planning Act 1990 — Claim dismissed
The claimant owned a four-storey building, which contained 33 flats. In October 1986, planning permission was granted for use of the building for residential purposes. Condition 15 of that permission provided that the accommodation was to be used solely as sheltered accommodation for elderly people and for wardens, and not for use as general housing.
In 1991, the local planning authority (LPA) granted permission for the temporary removal of condition 15 for a period of four years, subject to a condition that allowed use by the homeless. That provision was not implemented. The claimant started to permit younger people to live in the building. In October 2000 the LPA issued an enforcement notice on the basis that ameneties such as room layout, overlooking and parking were not favourable for younger occupiers and the character of the conservation area. Further, the letting of the units on the general market resulted in a net loss of affordable housing units, contrary to the local housing policy, which required sufficient sheltered-housing stock to be available.
The claimant appealed under section 78 of the Town and Country Planning Act 1990, arguing that there had been difficulty in marketing the flats to the elderly at normal market rent, and that the flats were no longer suitable as housing for the elderly. The inspector upheld the enforcement notice and reinstated the restrictions imposed by condition 15. He concluded that the provision of specialist sheltered housing should be protected, and that there was a need for sheltered accommodation for the elderly in the local area. On the evidence there had been a lack of vigorous effort, on the claimant’s part, to market the flats to elderly persons.
The claimant applied to the High Court, under section 288 of the 1990 Act, to quash that decision on the grounds that the inspector had failed to take into account relevant matters and had taken into account matters that were irrelevant. The claimant contended that the inspector had focused solely upon sheltered housing suitable for the elderly, and had failed to distinguish between affordable sheltered housing, which was needed in the area, and sheltered housing at market rent, for which there was no demand.
Held: The claim was dismissed.
The inspector had not erred in deciding that condition 15 should remain valid. The evidence showed that the inspector had been fully aware of the distinction between market rent and affordable housing when he concluded that the flats did not constitute affordable housing. The inspector had been entitled to conclude that the claimant had not vigorously attempted to market the flats to elderly persons, and consequently the claimant had failed to establish a local need for sheltered accommodation for the elderly at market rent. Bearing in mind that planning policy H5 of the Brent replacement unitary development plan 2000-2010 required that existing affordable housing be protected, and the inspector’s finding that the claimant had failed to show that there was no demand for flats for the elderly in the area, the inspector was entitled to uphold the enforcement notice.
Anna Mathias (instructed by Piper Smith & Basham) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment, Transport and the Regions.
Eileen O’Grady, barrister
