"Housing with care" is a type of retirement housing in which older people can receive the services, facilities and help that they need without losing their independence.
Accommodation for the elderly has developed into three models; housing-with-support, housing-with-care and care homes, whereas the planning regime offers two relevant classes: the C2 and C3 classifications. There is therefore uncertainty as to how certain types of development fit into planning use classes, particularly those schemes which are, by nature, a mixture of the two planning classifications.
We have discussed this issue before in the context of a decision (APP/D0840/W/18/3199163), where the Planning Inspector classified as C3 rather than C2 a bungalow scheme in Cornwall for people over 55 who were to be offered care for a minimum of two hours a week. The Inspector's reasoning revolved around a perceived lack of connection between the accommodation and the provision of personal care.
Rectory Homes v South Oxfordshire District Council
The issue has come to the fore again in Rectory Homes Limited v Secretary of State for Housing Communities and Local Government and South Oxfordshire District Council [2020] EWHC 2098. This relates to a scheme in Thame which includes 78 units of residential accommodation, each one with its own front door and allowing for independent living for up to 2 people at least one of whom must be aged 65 or more and in need of at least 2 hours of “personal care” a week. All residents would be entitled to use the communal facilities in the residents’ centre, to be paid for through a service charge on each residential unit.
In this case, the developer applied to court to challenge the Planning Inspector's decision to dismiss their appeal against the Council's refusal of planning consent. A key question for the court to decide was whether, on a proper interpretation of the development plan, a proposal for extra care housing within the C2 Use Class triggered a requirement under the area's statutory development plan to provide affordable housing where a development includes a net gain of 3 or more dwellings.
What were the parties' arguments?
The developer argued that the use of the word “dwellings” in the Council's affordable housing policy must be referring to a dwelling in the C3 Use Class, which refers to dwelling houses, whereas the C2 classification refers instead to residential accommodation. The parties agreed that the scheme in question fell into the C2 category because of the provision of care, so the developer contended that it had to follow that no part of the development could fall within the C3 Use Class and so could not amount to a “dwelling” under policy CSH3 triggering a requirement to provide affordable housing.
The Council's approach was that each housing-with-care unit is a dwelling, in form and function, and that a C2 use can include residential accommodation in the form of dwellings, provided that those dwellings are not in C3 use.
"Dwelling house" is not a defined term within the Use Classes Order and "dwelling" was not defined within the Council's development plan. There is no statutory definition of "dwelling" in planning legislation, but the Courts have generally accepted that the distinctive characteristic of a dwelling house is its ability to provide its residents with the facilities required for day-to-day private domestic existence. In this case each of the units has all the necessary facilities, such as kitchens, washing facilities, bedrooms and living areas.
The Inspector concluded that the proposed units of residential accommodation were dwellings to which the requirement to provide affordable housing under Policy CSH3 of the Core Strategy applied. The Claimant challenges that conclusion as a misinterpretation of the policy.
The judgment
The Court decided that there is no reason why a C2 development or scheme may not provide residential accommodation in the form of dwellings. It also pointed out that the interpretation of a development plan policy must depend on the language used in that particular policy and in the plan. As a general approach, unless the language of a policy expressly relies upon the Use Classes Order or that plainly appears from the policy’s context, then the concepts of C2 or C3 use are not helpful in interpreting local policies.
Conclusion
This judgment will increase uncertainty among both planners and developers as to how local plans should be interpreted and could affect developments falling within C4 (HMOs) as well as C2. There are difficult strategic decisions for developers to make between providing appropriate accommodation for elderly people, without isolating them unnecessarily from the community, or depriving them of the freedom to live independently, and yet offering access to support facilities in a flexible manner. Arguably, this merits a specific Use Class of its own, or consents that enable units to be both C2 and/or C3 during their lifetimes, depending on the degree of care that occupants need at different stages of their lives.
Given the recent and significant reworking of the Use Classes Order (which we discuss here), a new category of Class C for elderly living accommodation would not seem out of place. Where such a new Use Class would stand on affordable housing provision is uncertain: if there is a new Use Class, it might be appropriate to require a lower level of affordable housing contribution where such housing is secured by condition for the use of elderly persons.
