Comment
High Court Judgment: Later Living
Summary: Rectory Homes Ltd v Secretary of State for Housing Communities And Local Government [2020] EWHC 2098 (Admin) (31 July 2020)
The Use Class of various forms of later living accommodation, and the interaction with planning policies has been debated for many years, and so far the Government has not been receptive to proposals for changes to the Use Classes Order, or creation of a new Use Class. The recent Rectory Homes Limited vs SSHCLG & SODC planning appeal, and subsequent Judgment in the High Court, provides some clarity on the interaction between Use Class C2 and the term ‘dwelling’; however in doing so potentially widens the debate in relation to matters such as CIL, S106 and the wider policy considerations.
Senior Planner, Jadine Havill summarises the main points of the Judgment below.
Rectory Homes Limited challenged the Secretary of State (SoS) dismissal of their appeal against the decision of South Oxfordshire District Council (SODC) to refuse planning permission for a ‘Housing with Care’ development (Use Class C2) in Thame.
This challenge was dismissed by the High Court on 31 July 2020. The Judgment focuses on whether a proposal for extra care housing (which the applicant asserted was within Use Class C2) does or does not fall within the scope of the policy requiring schemes for 3 or more dwellings to provide affordable housing.
The interpretation of the Use Classes Order and the application of it to relevant local policy in this Judgment is likely to be regularly cited as relevant case law where similar schemes are proposed. It will potentially be used by local authorities as precedent to justify affordable housing and other requests.
Key areas of the Judgment and grounds for challenge relevant to later living schemes are summarised below.
The scope of Use Class C2
The Claimant, Rectory Homes Limited, argued that a dwelling or dwelling-house must fall within a Use Class C3 and thus a Use Class C2 unit cannot constitute a dwelling.
At Paragraphs 54 – 65, Mr Justice Holgate deals with the scope of Use Class C2 as part of the assessment of the affordable housing policy application. He notes:
- With respect to the Use Class Order (“UCO”), the term “residential accommodation” in C2 includes properties with the physical characteristics of dwellings. C2 Use can include accommodation in the form of dwellings including flats and bungalows for an independent existence. Their use only falls within Use Class C2 if “care” [1] is provided for an occupant in each dwelling in need of such care.
- The distinction for C2 is not simply provision of care, as this can also be provided within Use Class C3. The distinguishing feature of C2 accommodation is occupants being in “need of care”. This is set out in the accompanying Section 106 obligation for the scheme.
- There is no reason why a C2 development cannot provide accommodation in the form of dwellings provided its use did not fall within Use Class C3. The UCO does not preclude extra care development from representing dwellings.
The interpretation of “dwelling” in the application of Affordable Housing Policy
Following the above interpretation of “dwelling” within the context of C2 / C3, the Judgment turns to deal with its application in the context of the affordable housing policy.
Mr Justice Holgate states at Paragraph 43 that “The Plan does not contain a definition of “dwelling””. At Paragraph 47, he confirms that the affordable housing policy does not use the word dwelling as a term explicitly within Use Class C3. There is no express or implicit mention of the Use Class Order in the policy.
Mr Justice Holgate confirms at Paragraphs 79 - 81 of the Judgment that:
- The language used within the development plan policy does not expressly rely upon the Use Class Order, or refer directly to it in the policy context when defining the term “dwelling”. On this basis, the interpretation of what constitutes a “dwelling” should not be limited to property falling within Use Class C3.
- More widely, there is nothing in the Plan within the affordable housing policy or elsewhere which confines the interpretation of “dwelling” to only that falling within Use Class C3.
This interpretation concludes that the policy can apply to “dwellings” falling within Use Class C2, unless explicitly specified otherwise in the policy.
The Judgment also discusses the relevance of viability testing to the interpretation of the affordable housing policy. Mr Justice Holgate concludes that material of this nature should not aid the interpretation of such policy. At Paragraph 75, he considers that based on his interpretation of the policy, viability testing for extra care housing can be addressed on a case by case basis as would be done for general market housing.
Summary and possible implications
In summary, the Judgment sets the following precedents for the interpretation of the UCO and affordable housing policy:
- Accommodation in the form of dwellings can exist in both Use Class C2 and C3. Examples for C2 Use include bungalows and flats.
- The determining factor for development falling within Use Class C2 is how that dwelling is used i.e. for the provision of “care” to occupants specifically in need of that care.
- Where the affordable housing policy or elsewhere in the Plan does not rely expressly on the UCO, the use of the term “dwelling” is not limited to falling within Use Class C3.
The Judgment primarily refers to the interaction of extra care schemes in Use Class C2 and the term ‘dwelling’ in affordable housing policy. There is the potential that authorities may seek to broaden the scope of the Judgment to those policies which refer to affordable housing being secured from schemes which provide ‘new homes’ or ‘residential development’, for example.
The Judgment also has potentially wider reaching implications:
- Community Infrastructure Levy (CIL) Charging Schedules often simply set rates for ‘dwellings’ or ‘residential development’ and some do distinguish between schemes in C2 and C3. However where the CIL does not provide such clarification, this may be relied upon to suggest that extra care (or similar) schemes should provide CIL.
- That may be in direct contradiction of the CIL viability assessment which may have been undertaken before this Judgment and may have concluded that they should not pay the Levy.
- The prospect that authorities may use the Judgment to secure other obligations.
- The general application of planning policy, given that Local Plans rarely allocate sites for such forms of development.
This Judgment has potential implications for those operating in this sector, which we would be happy to discuss. Please contact Jadine Havill, David Murray-Cox or Phil Jones for more information.
11 August 2020
