Tag: extra care

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• Are local plan policies now out of date?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

The Extra Care Question: RU-C2 or C3-UCO?

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