Town and country planning – Planning permission – Development plan policy – Claimant developer applying to quash decision of defendant secretary of state upholding refusal of planning permission for “housing with care” scheme – Whether proposed development comprising dwellings subject to requirements of affordable housing policy — Application dismissed
The claimant developer applied to the interested party local planning authority for planning permission for a development at The Elms, Upper High Street, Thame, Oxfordshire for the erection of a “housing with care” development within class C2 of the Town and Country Planning (Use Classes) Order 1987 comprising 78 units of residential accommodation and a communal residents’ centre.
The appeal site comprised 2.94 ha of land in the centre of Thame to the south of The Elms, a 19th century house and Grade II listed building. The site lay within the Thame Conservation Area. It was an open area of privately-owned parkland and mature trees.
By an agreement under section 106 of the Town and Country Planning Act 1990, occupation of the units would be restricted to a maximum of two people one of whom had to be aged 65 or more and in need of at least two hours of “personal care” per week. Each unit was to have its own front door, between one and four bedrooms and a living room, bathroom and kitchen allowing for independent living.
The interested party refused permission and an inspector appointed by the defendant secretary of state dismissed its appeal against that decision. He concluded that the scheme did not meet the interested party’s affordable housing policy, which applied to sites where there was a net gain of three or more dwellings; and it was not remedied by the claimant’s commitment to pay a contribution towards off-site affordable housing.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. The central question was whether, on a proper interpretation of the development plan, a proposal for extra care housing within the C2 Use Class fell within the scope of the policy requiring schemes for three or more dwellings to provide affordable housing.
Held: The application was dismissed.
(1) The terms “dwelling” or “dwelling house” in planning legislation referred to a unit of residential accommodation which provided the facilities needed for day-to-day private domestic existence. That concept was consistent with the interchangeable use of the words “dwelling”, “house”, “home” and “unit” in the interested party’s core strategy. It could include an extra care dwelling, in the sense of a private home with the facilities needed for independent living but where care was provided to someone in need of care. That meaning was entirely consistent with the approach taken by the claimant in the section 106 obligation in the present case. A property could not fall within class C3 of the Town and Country Planning (Use Classes) Order 1987 unless it had the physical characteristics of a “dwelling” and was used in a manner falling within that class. It followed that a property might properly be described as a “dwelling” in accordance with the physical criteria without being used within the parameters of class C3. “Dwelling house” was not a term of art confined to the class C3 use. If recourse was had to the Use Classes Order in order to interpret the affordable housing policy in the plan, the order demonstrated that properties having the physical characteristics of a “dwelling” might be used as a dwelling in more than one way: Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P & CR 142 and R (on the application of Innovia Cellophane Ltd) v Infrastructure Planning Commission [2011] EWHC 2883 (Admin); [2011] PLSCS 258 applied.
(2) The first sentence of class C2 referred to “the provision of residential accommodation and care” without expressly requiring that to be provided by an institution in the traditional sense, such as a school or college or foundation of some kind. “Institution” in class C2 had a broad meaning which would include, for example, an “organisation” managing the whole of a development or scheme in order to ensure that the needs of residential occupants for “care” were delivered. A development for an institutional or organisational use in that broad sense was compatible with the provision of residential accommodation and care to occupants living in dwellings within the scheme. That was the model which the section 106 obligation in the present case sought to create.
A class C2 development might include accommodation in the form of dwellings, for example flats and bungalows, each of which had facilities appropriate for private, or independent, domestic existence. But their use would only fall within the class C2 if “care” was provided for an occupant in each dwelling who was in need of such care. Where the units in an extra care scheme physically amounted to dwellings, it did not matter what alternative language a developer chose to describe them. They still remained dwellings. What enabled “residential accommodation”, including dwellings, to fall within class C2 was not simply the provision of care to occupants. Care might also be provided to one or more occupant of a dwelling falling within class C3. A distinguishing feature of class C2 accommodation was that occupants were in “need of care”.
(3) There was no reason why a C2 development or scheme might not provide residential accommodation in the form of dwellings. That possibility was not precluded by the operation of the class C3 and its interaction with class C2. Thus, the language of the 1987 Order did not support the claimant’s argument that the extra care accommodation proposed could not represent dwellings and therefore could not trigger the application of the interested party’s affordable housing policy. That policy did not use the word “dwelling” as a term restricted to class C3. The policy made no reference, expressly or by implication, to the Use Classes Order at all. The correct interpretation of “dwelling” in the affordable housing policy was not confined to proposals for dwellings for use within class C3. The inspector’s clear findings of fact that the residential units in the proposal scheme would constitute dwellings, which were not open to challenge, were sufficient for that policy to apply to the appeal proposal.
Rupert Warren QC and Matthew Fraser (instructed by Eversheds Sutherland LLP) appeared for the claimant; Leon Glenister (instructed by the Government Legal Department) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Rectory Homes Ltd v Secretary of State for Housing, Communities and Local Government