Second respondent using premises for residential care for children — Whether such use rendering premises a residential home under Class C2 of Town and Country Planning (Use Classes) Order 1987 — Whether amounting to material change in use — Appeal dismissed
The second respondent company leased a house to be used for the residential care of two children. The children were cared for by non-residential members of staff on a rota basis. The claimant local authority applied to the first respondent Secretary of State, a certificate of lawful development under section 191(1)(a) of the Town and Country Planning Act 1990, and subsequently appealed against his non-determination of that application. In August 2002, the inspector allowed the appeal and issued the certificate on the basis that the new use fell within Class C3(b) of the Town and Country Planning Act (Use Classes) Order 1987: R v Bromley London Borough Council, ex parte Sinclair [1991] 3 PLR 60 followed.
The claimants contended that the inspector was in error. The care provision for the purposes of Class C3(b), taken in conjunction with the definition of “care” in Article 2 of the Use Classes Order, had to encompass the personal care of residential children in a dwellinghouse occupied by residents as a single household. Since the care providers did not form part of the household, the property was therefore being used as a residential home, or similar, and came within Class C2 of the Use Classes Order.
The issues were whether: (i) two children cared for by non-resident carers could constitute a household; and (ii) the use of the land was lawful.
Held: The appeal was dismissed.
The use of the land was lawful because no material change of use had taken place. The house was still in use as a dwellinghouse for the purposes of Class C3.
However, the inspector had erred in concluding that the living arrangements constituted a household. In general terms, where a household consisted of residents living together, the nursing staff or carers did not necessarily have to live on the premises. However, where the sole residents were dependent children, a household did have to include full-time, live-in care, in order to be classified as C3 use. Premises that were inhabited by children in care and non-residential staff fell to be classified as C2 use. The size of the institution was irrelevant.
Although the premises were being used on a Class C2 basis, planning permission would not necessarily be required if the change of use did not constitute a material change. It was a matter of fact and degree, to be assessed on the basis of each particular case. The inspector’s interpretation of Sinclair had been flawed, and he was incorrect in his definition of “household”. However, no material change in use had occurred and use of the premises could thereforecontinue in the same way.
David Fletcher (instructed by the solicitor to North Devon County Council) appeared for the claimants; Michael Gibbon (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Vivienne Lane, barrister
