Of Use? (& That Old C2 Number Again)

Where is this Planning Policy Paper then? Now presumably to be published by MHCLG next week, isn’t it odd to be making any such announcement when Parliament is no longer sitting, unless, anti-climatically, it is going be a factual update as to progress rather than the “big bang” moment many anticipated?

This post was just going to be a shameless plug for two webinars on the new Class E of the Use Classes Order that we at Town are running next week jointly with Landmark Chambers, at 5pm on 4 and 6 August, on the legal implications and the planning implications respectively. Details are below. We have had a great take-up (over 1,500 acceptances in total for the two sessions) but there is still capacity. What would we do without Zoom??

New Class E: The Legal Implications

5 pm Tuesday 4 August 2020

Practical answers to the questions arising from the amended Use Classes Order.

• How precisely will it work

• What about existing conditions and other restrictions?

• How to assess new applications and scope/risk of restrictive conditions

• Scheme definition in the new world

• External works

• The GPDO transitional arrangements

• Are local plan policies now out of date?

• How does CIL apply?

Panelists:

• Zack Simons (barrister, Landmark Chambers)

• Duncan Field (partner, Town Legal LLP)

• Heather Sargent (barrister, Landmark Chambers)

• Simon Ricketts (partner, Town Legal LLP)

Chair: Meeta Kaur (partner, Town Legal LLP)

Register via this link: https://us02web.zoom.us/webinar/register/WN_ow1AXngeRyyRrBE_moQPew

New Class E: The Planning Implications

5 pm Thursday 6 August 2020

The changes to the Use Classes Order have potentially fundamental consequences for land owners, developers, local authorities and communities:

• What can we expect to be the main opportunities?

• What are the concerns and how can they be mitigated?

• How will local authorities respond?

• What now for place making and sustainability?

• Retail, employment and leisure policies in the new world

Panelists:

• Alice Lester MBE (operational director, regeneration, London Borough of Brent)

• Michael Meadows (head of planning, British Land)

• Steve Quartermain CBE (consultant, Town Legal LLP)

• Sarah Cary (executive director, place, London Borough of Enfield)

• Zack Simons (barrister, Landmark Chambers)

Chair: Meeta Kaur (partner, Town Legal LLP)

Register via this link: https://us02web.zoom.us/webinar/register/WN_GnWGpSBQRWiqAeeTONsSjw

I was going to leave it at that, but then an interesting case was handed down earlier today: Rectory Homes Limited v Secretary of State (Holgate J, 31 July 2020). It doesn’t concern the recent Use Classes Order questions but rather the longstanding question as to how extra care housing should be categorised in use terms.

Usually the issue is C2 versus C3 (eg see my 16 September 2017 blog post Class Distinctions: Housing For Older People) but here it was a different question: was a proposed ‘Housing with Care’ development (Use Class C2)” development to be categorised as “dwellings” for the purposes of South Oxfordshire District Council’s local plan, which requires schemes for 3 or more dwellings to provide affordable housing? An inspector had dismissed Rectory’s planning appeal. Both parties at the appeal had agreed that the proposal fell within class C2. The difference was over whether the accommodation could be categorised as “dwellings”. “The Claimant’s stance was that because it was agreed that the residential accommodation did not fall within Class C3, none of those units could constitute a dwelling. SODC’s case was that the “housing with care” units were dwellings in both “form and function”, and as such could fall within the C2 Use Class provided that they are not in C3 use.”

The inspector found that the accommodation fell within C2 but that it comprised “dwellings” for the purposes of the policy. His reasoning was rather odd: “the Inspector appears to have taken the view that if each of the dwellings proposed would be ancillary to the C2 use of the site, the exclusion of dwellings falling within the C3 Use Class, upon which the Claimant had relied, could not apply.”

The inspector went on to find as follows:

Taken as a whole the proposal would be contrary to the development plan in that it would materially exceed the maximum number of dwellings set out in the site specific policy in the [Thame Neighbourhood Plan]. It would cause harm to the setting of The Elms and to the [Thame Conservation Area], which are both designated heritage assets, contrary to the relevant policies in the SOLP, the SOCS and TNP; special attention and great weight should be given to these harms. It would also fail to provide affordable housing, in particular on-site, to deliver a mixed community, in line with the policies of the SOCS, the TNP and the Framework. While there would be compliance with other policies, I consider that these are the most important policies for the determination of this appeal. These policies are all up-to-date.

As explored above, the proposal would result in less than substantial harm to, and thus the significance of, both the setting of The Elms and to the TCA. These should be balanced in line with paragraph 196 of the Framework with the public benefits of the proposed development. In this regard I consider that the public benefits identified above would balance those heritage harms. This is in line with Policy HA4 of the TNP which allows for a balance to be undertaken as to the overall planning conclusion, but this would not mean that there was compliance with that policy overall due to the number of dwellings being proposed.


By failing to provide affordable housing on the appeal site, the proposal would result in very substantial harm. The need for owner occupied elderly persons extra care accommodation in the area does not outweigh this harm.”

Rectory challenged the decision. I only refer below to those issues arising which touch on use classes.

Holgate J makes a preliminary point, which is topical, given much discussion at the moment as to the advantages or disadvantages of defining proposals by way of the new class E, once the Use Classes Order changes take effect from 1 September:

“I deal first with a preliminary point. The Inspector suggested in his Pre-Inquiry Note that because the purpose of the Use Classes Order is to remove certain changes of use from development control, a planning permission ought not to be expressed in terms of a Use Class, particularly as that consent would be issued before the development is constructed and begins to be used. The principal parties at the inquiry did not see this as posing any legal difficulty and ultimately it did not appear in the Inspector’s reasoning in his decision letter. I agree with them on this point. For example, the provisions on certification of lawful development require that the lawfulness of an existing use (which may be based upon a planning permission), or the lawfulness of a proposed use, should be described by reference to any Use Class applicable (ss.191(5)(d) and 192(3)(b)). I therefore cannot see why the grant of a planning permission may not also be defined in terms of a Use Class.”

So, there is no reason not to define what is granted planning permission by way of a use class rather by way of a specific proposed use. (Obviously what is applied for will need to be justified by reference to the relevant development plan and other considerations. Absent clear government guidance, that is going to be a big issue in relation to the new Class E – how much weight should pre Class E development plan policies still have?).

The judge goes on to conclude that extra care accommodation can comprise dwellings:

“It has become well-established that the terms “dwelling” or “dwelling house” in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (Gravesham p. 146; Moore v Secretary of State for the Environment, Transport and the Regions (1998) 77 P & CR 114, 119; R (Innovia Cellophane Limited) v Infrastructure Planning Commission [2012] PTSR 1132 at [27]-[28]). This concept is consistent with the Core Strategy’s interchangeable use of the words “dwelling”, “house”, “home” and “unit”. It can include an extra care dwelling, in the sense of a private home with the facilities needed for “independent living” but where care is provided to someone in need of care.”

Just because the proposed development is not within C3 does not mean that it cannot comprise dwellings for the purposes of policy. The inspector’s categorisation of the units of accommodation as ancillary to the main C2 use were seen by the judge as “wholly immaterial” to his decision.

Perhaps a reminder that, once we have all finished chewing over the uncertainties of new class E, the C classes are perhaps also in need of some updating…

(Zack: I reckon we could get a couple more webinars out of that exercise in due course…!)

Simon Ricketts, 31 July 2020

Personal views, et cetera

This blog post’s ear worm

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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