A long time ago in a galaxy far, far away, Parliament made the Use Classes Order.
I referred in my 16 September 2017 blog post Class Distinctions: Planning For Older People to the blurred distinction between C2 (basically use for the provision of residential accommodation and care to people in need of care) and C3 (basically use as a residential dwelling) when it comes to “extra care” facilities for the elderly. I set out some of the criteria applied by inspectors in appeal decisions.
There was a very useful appeal decision letter last month which surely throws additional doubt upon the soundness of the curious attempt in the draft London Plan in effect to amend the Use Classes Order by policy rather than legislation, in that it seeks to deem extra care facilities for the elderly in London as falling within use class C3 (and thereby becoming subject to affordable housing and other obligations and requirements) whereas the recognised planning law position is that they are more likely to fall within use class C2.
Draft policy H15 C states:
“Sheltered accommodation and extra care accommodation is considered as being in Use Class C3. Residential nursing care accommodation (including end of life/ hospice care and dementia care home accommodation) is considered as being in Use Class C2.”
Paragraph 4.15.3 of the supporting text simply states again that “sheltered accommodation and extra care accommodation should be considered as C3 housing“, defining extra care accommodation as follows:
“extra care accommodation (also referred to as assisted living, close care, or continuing care housing) is self-contained residential accommodation and associated facilities, designed and managed to meet the needs and aspirations of older people, and which provides 24-hour access to emergency support. A range of facilities are normally available such as a residents’ lounge, laundry room, a restaurant or meal provision facilities, classes, and a base for health care workers. Domiciliary care will be available to varying levels, either as part of the accommodation package or as additional services which can be purchased if required.”
First, how can it be appropriate in principle for a policy document to deem a use to be treated in a particular way in the Use Classes Order? The nature of the use and the determination of which use class, if any, it falls into, is a legal question. For instance whether planning permission would be required for a change of use would ultimately be determination by an application for a certificate of lawfulness of proposed use or development under section 191 of the Town and Country Planning Act 1990. By all means, if justified, the Mayor can determine that particular policies should apply to extra care accommodation (matters which could then be tested through the plan examination process) but his view as to which use class it might fall into has no weight in the legal determination of that question and in my view has no place in a document which is only allowed to address “matters which are of strategic importance to Greater London.”
Secondly, his view, not supported by any reasoning, as to the appropriate use class do not sit easily with the conclusions that planning inspectors have come to. The most recent decision letter (22 January 2018) was by inspector Michael Boniface, where he allowed an appeal in Sidmouth, East Devon, by Pegasus Life for an “assisted living community for older people comprising extra care units, staff accommodation and communal facilities, including a kitchen, restaurant/bar/café, a well-being suite comprising gym, treatment rooms and pool, a communal lounge and storage facilities; car parking for residents, visitors and staff of the assisted living community; comprehensive landscaping comprising communal and private spaces; and associated groundworks.”
The decision letter and inspector’s reasoning is well summarised in a blog post by Housing LIN – “Planning Inspector sets out the distinctive elements of Extra Care scheme resulting in C2 Use Class conclusion” (8 February 2018).
The inspector was presented with the Mayor of London’s position but it did not alter his conclusions on the facts of the case.
Thirdly, in its recent report Housing For Older People (8 February 2018) the Commons CLG Select Committee specifically considered the treatment of specialist older people’s housing in the planning system and particularly in the Use Classes Order:
“125. We also heard that the “inconsistent and cumbersome” application of the C2 and C3 planning classifications to extra care housing was problematic for developers. Some local authorities apply the C2 classification, applied to residential care homes and nursing homes, to extra care housing which reduces planning charges. Others classify this type of housing as C3, along with mainstream housing, which means full charges apply. Audley Retirement argued that extra care housing should fall within the C2 class:
“Extra care is set up to fulfil many of the functions that care homes can provide in terms of care delivery as and when the resident requires it, monitored by an onsite care team and there is access to communal facilities. There are controls over who can occupy them by age and a need for care that do not exist on C3 standard dwellings.”
Extra care housing developers had a range of suggestions for countering this issue: an “extension and additional clarity” on C2 so that it captures extra care housing; the creation of a sub-section of C2 which attracts lower planning charges; and the creation of a “dedicated use class” for extra care housing which would enable planning contributions to be streamlined.
126. When we asked about this, the then Housing Minister, Alok Sharma, told us that the guidance will look at the “precise terminology that is used to describe the different types of older people’s housing”.
The Select Committee concludes:
“We believe that the level of planning contributions on specialist housing, which are increased as a result of the non-saleable communal areas which are a feature of this type of housing, is impeding the delivery of homes. We recommend either the creation of a sub-category of the C2 planning classification (which currently applies to residential care and nursing homes) for specialist housing, which would reduce the contributions required from developers, or the creation of a new use class for specialist housing which would have the same effect.”
In the light of these considerations, how can draft London Plan policy H15 C possibly be justified?
Simon Ricketts, 17 February 2018
Personal views, et cetera
SIMONICITY 
Of course, no one would be troubled by the use class if it wasn’t for the implications that flow from e.g. affordable housing policies and CIL etc.
What frustrates me in particular is that so much time is spent in these cases debating the management of facilities and the level of care etc and so little time on the normal foundations of any planning use case i.e. the physical form of the buildings and the appropriate planning units.
My counter proposition is that ‘use for the provision of residential accommodation and care to people in need of care’ that is accommodated within a ‘dwellinghouse’ is a C3 use. As I have said to some local extra care developers, if the provision of care makes something C2, what happens when you offer to provide care to someone in their own home in the community? Is there a change of use from C3 to C2 triggered by the provision of care? Awkward looks abound as the only reasonable answer is ‘no’.
Reasoning:
Such uses are expressly excluded from C2 by the bracketed phrase in C2.
And they are expressly included in C3b by the inclusion of the phrase “where care is provided for residents”.
A dwellinghouse is one form of residential accommodation (but not the only one) and C2 explicitly applies only to those forms of residential accommodation that are not dwellinghouses (as per the bracketed phrase).
So, as I see it, as care can be provided in either C2 or C3 accommodation the provision of care does not and cannot touch the use class. (Other than excluding Class C1.)
Therefore, I would suggest a condition or S106 on a dwellinghouse that restricts entry or occupation to those in need of care does not touch the use class any more than a restriction on age, or agricultural workers’ status, or 11 month occupation of holiday accommodation do.
Single freehold and management company etc? What about a block of flats with concierge service?
Outside of the care sector, planning law is fairly well settled on these issues. It surprises me that things seem to be taking a more obscure route in the case of care.
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