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 email@example.com.
Sponsor Licence Compliance: Key considerations & how to be audit ready
Join us for the third in our series of mini webinars on post Brexit immigration about sponsor licence compliance.
UK SPACs: could changes to the UK Listing Rules spark an increase?
SPAC listing popularity has increased. Could the UK be the next hotspot following proposed changes to the Listing Rules?
Sustainable Investing: From ESG Integration to Impact Investing
We have a wide perspective on the range of issues that fall within the spectrum from ESG to impact investing.
Liability for costs of repair (City of London v. Leaseholders of Great Arthur House)
Oliver Park writes an article for Lexis®PSL on a property dispute case.
Levelling Up Life Sciences?
Can a restrictive covenant become obsolete?
Q&A on adverse possession
A successful application for title by adverse possession will result in the squatter acquiring possessory title to land.
New tax on property developers - consultation paper published
The government published a consultation paper on the design of the new residential property developers tax.
Claire Fallows quoted by Planning on how new PD rights for commercial buildings will change the system
Councils should be prepared for a flurry of applications in August.
Oliver Park writes for LexisPSL Property Disputes on liability for costs of repair
Oliver considers the implications of the decision in City of London v Leaseholders of Great Arthur House.
Procuring modular housing: Is MMC becoming mainstream?
Is Modern Methods of Construction becoming mainstream? Read what it means for Development and Procurement here.
Dual class share structures: how do they work and what are the pros and cons?
Dual class share structures allow a shareholder, for example the founder, to retain voting control over a company.
Q&A: Talking the telecoms talk
Georgina Muskett and Jonathan Wills answer queries on Electronic Communications Code agreement.
Property Patter: Navigating the complexities of Pharmacy Property
Pharmacy property is a specialist area which contains many traps for the unwary.
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Linking ESG and Executive Pay
How does a business go about embedding a focus on strong ESG performance into the structures and culture of its organisation?
National Security and Investment Act granted Royal Assent
The Act establishes a new regime for the review of mergers, acquisitions and other transactions that could threaten national security.
Recent Trends In Firewall Legislation: BVI, Bermuda And Gibraltar
Charles Russell Speechlys advises Waverton on acquisition of Cornerstone Asset Management
Established in July 2010 and with offices in Edinburgh and Glasgow, Cornerstone offers wealth management and financial planning advice.
What do the new Debt Respite Scheme Regulations mean for Landlords and Tenants?
This will provide legal protection from creditors in the form of either a breathing space or a mental health crisis moratorium.