Retirement Living and the Use Class debate

There is an increasing desire from an aging population for developments adapted to the needs of older persons. Many models of retirement living are emerging, which have different lower age restrictions, varying levels of communal facilities and differing access to domiciliary and nursing care. Those models do not always sit comfortably within existing planning use classes or planning policies.

The current Town and Country Planning (Use Classes) Order 1987 defines use class C2 as including use for the provision of residential accommodation and care to people in need of care (provided the use does not fall within use class C3) and nursing homes. Use class C3 includes use as a dwelling by a single person or a family or by not more than 6 residents living together as a single household, including where care is provided.

Some retirement models may fall within use class C3, including age restricted dwellings where no care is provided or small communities of older persons living together as a single household with some degree of support. Care homes generally fall within use class C2. However, whether or not a retirement village or other retirement living model, including extra care accommodation, falls within a use class can be unclear and depend on a number of factors, including the scheme’s specific qualification criteria on the need for care, and how the development is managed and operated.

Does the use class matter? Not always, but when seeking planning permission, sometimes authorities apply different policies to development within use classes C2 and C3. In particular, a quantum of affordable housing may be required for use class C3 schemes, but not care homes – whether or not affordable housing is required for a particular type of retirement living scheme may depend on the exact wording of the policies. Affordable housing requirements can create issues with development viability and management, particularly if sought on site.

The Mayor of London’s draft London Plan sought to clarify the issue for London. Changes to the Plan following the examination differentiate (in emerging Policy H15) between “specialist older persons housing”, including sheltered accommodation and extra care accommodation, and “care home accommodation”.

The draft plan identifies what specialist older persons housing should provide as part of the development: accessible and inclusive design; safe storage and charging facilities for residents with mobility scooters and suitable pick up and drop off facilities close to principal entrances and importantly, affordable housing. The draft policy is contentious with many operators who consider that the affordable housing requirements will render their schemes unviable. There are provisions for viability testing. The draft Plan is still subject to examination and the final form of Policy H15 remains to be seen.

Developers who require their proposed retirement living development to fall within use class C2 should consider carefully the level of care and care facilities that future residents are expected to contribute towards (through the service charge) and/or sign up to (through additional care packages) and how that is secured, alongside minimum age restrictions. Prospective residents may be required to undertake an assessment of their care needs, such assessments being updated regularly going forwards for those in residence.

Where affordable housing is required as part of a development, then the developer will need to agree with the local planning authority whether it can be provided on-site and if so, the appropriate location, tenure and management arrangements. Cascade arrangements can be included to protect the developer if a registered provider cannot be found or minimum terms are not met. Otherwise, a financial contribution may be negotiated towards off-site provision, depending on the authority’s policies.

Carefully drafted section 106 agreements or (often for appeals) unilateral undertakings will be required to secure the above matters and bind those developing and living in the scheme in the future.

This article was written by Claire Fallows. For more information please contact Claire on +44 (0)20 7427 1046 or claire.fallows@crsblaw.com.