High Court finds that C2 extra care scheme not exempt from affordable housing requirements
The recent decision of the High Court in Rectory Homes Limited v SSHCLG and South Oxfordshire District Council [2020] EWHC 2098 (Admin) highlights that extra care developments within Use Class C2 are not exempt from providing affordable housing solely by virtue of falling within that use class – whether or not affordable housing is required will depend on the wording of the relevant development plan policy relating to a site.
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 (these Use Classes are unchanged by the recent amendments). Sometimes local 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. In this case, the Council’s affordable housing policy CSH3 provided that “40% affordable housing will be sought on all sites where there is a net gain of three or more dwellings subject to the viability of provision on each site”. The policy makes no reference to the Use Classes Order.
On appeal, the inspector had followed the decision of the Council and refused planning permission for a “Housing with Care” development (Use Class C2) for 78 open market extra care dwellings and a communal residents centre, finding that the failure to provide a sufficient number of affordable homes as part of the scheme would cause “very substantial harm”.
Rectory Homes lodged a section 288 challenge at the High Court, arguing that the requirement to provide affordable housing was not triggered because the use of the word “dwellings” in the Council’s affordable housing policy CSH3, could only refer to a dwelling in the C3 Use Class. It was agreed between the parties that the proposed development fell within the C2 Use Class, and therefore could not fall within the C3 Use Class under the terms of the Use Classes Order.
The High Court rejected the arguments on behalf of Rectory Homes and dismissed the appeal, finding that:
- The use of the word “dwelling” in policy CSH3 was not restricted to development falling within Class C3 – the policy made no reference, expressly or by implication, to the Use Classes Order at all;
- There is no reason why a Use Class C2 development may not provide residential accommodation in the form of dwellings – that is not prevented by the Use Classes Order. Residential accommodation in Use Class C2 may have the physical characteristics of dwellings with facilities for independent existence, but their “use” may fall within Use Class C2 if “care” is provided to occupants who are in need of care;
- 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, such provisions do not provide an aid to the interpretation of the policy.
The decision highlights that in determining whether affordable housing will be required the focus should be on the relevant development plan policies rather than which use class the proposed development falls within.
This article was written by Lydia O'Hagan. For more information, please contact Lydia.
Our thinking
Jonathan Steele
Charles Russell Speechlys advises the DiscoverIE Group on its acquisition of the CDT Group
The CDT Group, will be integrated with discoverIE's Contour business cluster within the Sensing & Connectivity division.
Naomi Nettleton
Charles Russell Speechlys advises Topland Group on new joint venture and £50m acquisition and financing of Allen House
Charles Russell Speechlys completes third major transaction with Topland Group this year
Reem Al Mahroos
Source of Funds: New Reporting Requirements for Real Estate Transactions in the UAE
Piers Master
Bloomberg quotes Piers Master on the Zara family office
“Clients are increasingly mindful of the need to not to have all their eggs in one basket”
Steven Carey
Steven Carey and Carolyn Davies write for Construction News on a recent cladding court ruling
Cladding court ruling provides post-Grenfell liability pointers
Simon Green
Simon Green and Reem Al Mahroos write for Real Estate Asia on the trend of 'revenge tourism'
Revenge tourism is the new direction of travel for Asia...
Richard Flenley
Building Safety Fund has re-opened for applications
Clare Davis
Clare Davis writes for Personnel Today on hot weather and employment law
Hot summers, hot desks – employment law advice on working through heatwaves
Hannah Turner
Q&A: Tackling technicalities and typos
Our experts answer a landlord’s query about the validity of a section 21 notice
Hope Barton
Q&A: The qualifying criteria explained
What do landlords need to prove to satisfy ground (g) of section 30(1) of the 1954 Act for the purposes of a new tenancy?
Michael Lingens
Charles Russell Speechlys has advised the owners of The Centre for Reproductive and Genetic Health (CRGH) on its sale to FutureLife
CRGH is the largest private fertility clinic in the London IVF market.
Naomi Heathcote
Green leases crucial to achieving net zero in the built environment
‘Net zero’ requires emissions to be reduced as far as possible, and for the remaining (or ‘residual’) emissions to be removed or captured.
Faye Cunningham
Closing the loophole or cumbersome rules? Beneficial owners of non-UK companies acquiring property within the UK to reveal their true identities
Samuel Lear
Samuel Lear answers the EG Legal Q&A on code rights
Q&A: Code rights queries answered
Claire Fallows
Politics, planning & life sciences clusters
Charlotte Duly
Retail Bulletin quotes Charlotte Duly on the House of Zana trademark row with Zara
"In this battle of David and Goliath, the little guy has come out on top."
David Coates
Charles Russell Speechlys advises Puma Private Equity on its investment into MUSO
We have advised long-term client Puma Private Equity on its investment into MUSO TNT Limited.
Helen Coward
FT Ignites Europe quotes Helen Coward on portfolio manager bonuses
"HMRC has had asset managers in their spotlight for some time now"
Emma Preece
Success for landlords as Court of Appeal dismiss cinema operators' appeal on COVID-19 arrears
Melania Constable
Melania Constable and Jessica Williams write for Pharmacy Business on what the collapse of Testerworld means for community pharmacies
What does the collapse of Testerworld mean for community pharmacies?