Town and Country Planning Act 1971–Application to quash decision of Secretary of State–Whether use of a house as holiday accommodation for mentally-handicapped persons came within Class XIV of the Town and Country Planning (Use Classes) Order 1972–Whether a material change from previous permitted use as an hotel/guest-house–Secretary of State held to be wrong in deciding that the use as holiday accommodation for the mentally-handicapped had the feature of semi-permanent institutional care which characterised Class XIV–Purpose of Use Classes Order not to define what is development, but, on the contrary, what is not–Secretary of State’s decision quashed.
The
applicants, Jack Rann and Ellen Barbara Rann, were the owners of a three-storey
building in St Mildred’s Road, Westgate-on-Sea, Kent, for which planning
permission had been given in 1975 for use as an hotel/guest-house. This was
before the purchase of the property by the applicants. They started to use it
in 1976 to provide holiday accommodation for mentally-handicapped persons. The
local authority requested the Ranns to apply for planning permission to change
the use to a use within Class XIV of the 1972 Use Classes Order. Their
application was made but was refused. An enforcement notice was served
requiring the discontinuance of the holiday accommodation use. On appeal to the
Secretary of State against both the planning refusal and the discontinuance
order, the Secretary of State granted permission for the use of the house as a
holiday home for mentally-handicapped persons, but only subject to a condition
that the use should cease on or before December 30 1981. The applicants applied
to the High Court for the Secretary of State’s decision to be quashed on the
ground that he was in error in deciding that the use came within Class XIV.
D Robins
(instructed by Parrys, of Herne Bay) appeared on behalf of the applicants;
Simon Brown (instructed by the Treasury Solicitor) represented the respondants.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an appeal from a decision of the
Secretary of State in which he granted planning permission for the use of a
former large dwelling-house at 63 St Mildred’s Road, Westgate-on-Sea, Kent, as
a holiday home for mentally-handicapped persons but subject to a condition that
that use shall cease on or before December 30 1981. The matter came before the
Secretary of State on an appeal against an enforcement notice, and the local
planning authority’s main contention, which was accepted by the inspector, was
that the present use falls within Class XIV of the Town and Country Planning
(Use Classes) Order 1972. The facts so far as material to the issue before me were
found by the inspector in these terms:
2. The appeal
property is a three-storey building, containing a lounge, dining-room and
kitchen, bedrooms for 23 mentally-handicapped persons and three supervisors,
and the owners’ flat.
5. In
mid-1975 63 St Mildred’s Road was in use as holiday flatlets. In November 1975
planning permission was requested, and granted, for change of use to an
hotel/guest-house and for no other purpose.
6. In March
1976 the appellants completed the purchase of 63 St Mildred’s Road, and after
redecoration and installation of a fire-alarm system, started to provide
holiday accommodation for mentally-handicapped persons.
7. In April
1976 the local authority requested that application should be made for planning
permission for a change of use of the appeal premises to a use within Class XIV
of the Use Classes Order 1972. This was done under protest in July 1976, and
refused (one subject of the present appeals) in October 1976.
8.
Mentally-handicapped persons on holiday at the appeal premises come in groups
from hospitals for periods of one or two weeks, accompanied by their own
qualified supervisors. The holiday season lasts for 21 weeks from May to
September. There are no mental after-care patients.
9. Whilst on
holiday, apart from medication which is administered by their own supervisors,
mentally-handicapped persons requiring treatment are returned to their own
hospitals. During 1976, 1977 and 1978, out of 1,089 persons holidaying at the
appeal site, only five had made any call on local medical services; these cases
were unconnected with mental conditions.
In the course
of his decision letter the Secretary of State said:
On the
question of the aptness of the allegation–ie of the Class XIV use–the view is
taken that a more accurate description of the use would be ‘a holiday home for
mentally-handicapped persons.’
However, in
the following paragraph he said:
The view is
taken that the use of the premises for the accommodation of parties of mental
patients on holiday from hospitals where they are normally cared for as
in-patients involves an institutional use, with care and supervision akin to
that provided in hospital, and falls within Class XIV of the Town and Country
Planning (Use Classes) Order 1972. Such use is considered to be materially different
from both the permitted use of the premises as an hotel/guest-house, whose
essential function is to provide accommodation and meals to members of the
general public as paying guests, and from the previous use as holiday flatlets.
It has been concluded, therefore, that the introduction of the holiday home use
involved a material change of use and constituted development requiring
planning permission. As such permission was not obtained there was a breach of
planning control and the appeals accordingly fail on ground (b).
It is common
ground that the sole question which I have to decide is whether the present use
is one defined in Class XIV of the Town and Country Planning (Use Classes)
Order 1972 and that I am not concerned with any other question. Class XIV is in
these terms:
Use as a home
or institution providing for the boarding, care and maintenance of children,
old people or persons under disability, a convalescent home, a nursing home, a
sanatorium or a hospital.
Mr Robins, for
the applicants, first drew attention to the apparent inconsistency in the
Secretary of State’s letter: with one breath saying that the Class XIV
definition was not an apt description of the use and with the next stating that
the use falls within that class. Mr Brown conceded the apparent inconsistency
but submitted, in my view correctly, that the question which I have to decide
is whether, on the facts as found, the
that the expression ‘holiday home’ is a home and not a place where one has a
holiday, nor is the word ‘home’ or ‘institution’ apt to describe the
guest-house operated by the applicants: it is a guest-house specialising in
mentally-handicapped persons. Further, it is inherent in the definition that
the home or institution must provide for the care and maintenance of the
residents, which this guest-house does not.
Mr Brown
described the premises as ‘a home from home’ and as ‘an arm of a more permanent
institution.’ It was an inevitable
corollary to the provision of accommodation for the mentally-handicapped that
they would come from a small preselected section of the community as a
composite group accompanied by institutional staff. He argued that ‘providing
for’ does not mean that the appellants must be the provider of the care and
maintenance but only that they have to offer the facilities. He also said that
it is permissible to take into account the effect on the neighbourhood, but I
am bound to say that I do not understand how that can be.
I think it
important to bear in mind the origin and purpose of the Use Classes Order, as
from the foregoing arguments it might be thought that its purpose is to define
certain kinds of development, whereas the converse is true. The order derives
from section 22 of the Town and Country Planning Act 1971, which in subsection
(2) provides that:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land, that is to say:
(f) in the case of buildings or other land which
are used for a purpose of any class specified in an order made by the Secretary
of State under this section, the use thereof for any other purpose of the same
class.
It follows
that the Use Classes Order is being borrowed in this case for a purpose for
which it was not intended. Its intended purpose is to put outside the ambit of
the Act a change of use which has taken place within the same use class. It is
not uncommon to find the definitions in the order used as a shorthand to
describe what is not being permitted, but it is important to bear in mind the
effect of the order. Thus, if the Secretary of State is right, then a
guest-house providing holidays solely for children could be changed to a hospital
or a home for the mentally sick without the grant of planning permission. I can
think of a number of examples of such guest-houses–residential sailing and
riding schools, mountaineering and physical education centres. The inquisitive
bystander would be surprised to hear such places described as homes or
institutions and if he were a neighbour he might be dismayed to know that
planning permission would not be required to change the use to, say, a home for
alcoholics.
I do not think
that Class XIV bears the extensive meaning ascribed to it by the Secretary of
State. I think it inherent in the words used that the care and maintenance
referred to is of a special nature to be provided by those running the home or
institution. For example, in all the cases described in the order I would
expect to find a matron employed. Moreover, the word ‘home,’ and by application
of the ejusdem generis rule ‘institution,’ connotes permanence. I think
I can best relate what I here have in mind by adapting words used by Lord
Widgery CJ in Mayflower Cambridge Ltd v Secretary of State for the
Environment (1975) 30 P & CR 28 at p 32: I have no doubt that it is
well understood and is acceptable as an ordinary use of English, namely, that
the real difference between use as a home and use for the purpose of a
guest-house turns on the instability of the population in the premises and the
extent to which they are making the guest-houses their homes. The essence of a
guest-house is that it takes transient passengers. Of course there may be an
individual here and there who stays for a long time if it suits him, and there
are buildings which are wrongly described as guest-houses or as residential
guest-houses. But the basic feature of a guest-house as the word is used in the
English language is that it contains a transient population because it is there
to serve people travelling who require short stays only. By contrast, the home
in the way in which the phrase is used in English is somebody’s home. It is
where somebody lives. It is where somebody remains for a substantial time.
Accordingly, one has in a home or institutional use a far more stable
population than one has in a guest-house use. For the removal of doubt I have
used the phrase ‘guest-house’ as it is used in Class XI as being the same kind
of use as an hotel, that is, for providing holiday accommodation and not as it
is sometimes used, say in Earl’s Court, as a place providing permanent
accommodation. It does not necessarily follow that I hold that the use in this
case falls within Class XI, for I have heard no argument on that point nor
whether the use is sui generis, as was held in the case of a students’
hostel: see Mornford Investments Ltd v Ministry of Housing and Local
Government (1970) 21 P & CR 609. Accordingly, I do no more than hold
that the Secretary of State wrongly construed the use in this case as falling
within Class XIV of the Use Classes Order.
The Secretary
of State’s decision was quashed with costs.