Crawley Borough Council, R (on the application of) v Helberg (t/a The Evesleigh Group)

MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990, by which Crawley Borough Council challenges the decision of an inspector appointed by the First Secretary of State, given by letter dated 8 August 2003. In that decision the inspector allowed an appeal by the Evesleigh Group, the second defendant in these proceedings, under section 195 of the 1990 Act against the refusal by the Council of a Certificate of Lawfulness under section 192 for the proposed use of premises known as Oak House, 193 Weald Drive, Crawley, for occupation for four persons between the ages of 18 and 65 with learning difficulties living as a single household.

Before me, the main submissions have been made by Mr Wald on behalf of the Council, and Mr Strachan on behalf of the First Secretary of State. Mr Alesbury has appeared on behalf of the second defendant to safeguard that defendant's position, but in the event has adopted Mr Strachan's submissions.

The property in question is a semi-detached house which was previously in use as a single dwelling, though it included an extension part of which formed a self-contained "granny annexe". The inspector, at paragraph 5 of the decision letter, described the proposed use in these terms:

The application related to the proposed use of the property but, as is apparent from that passage, by the time of the inspector's consideration of the matter the property was in actual use for the relevant purpose. The inspector nonetheless thought it right to deal with the application as one for a proposed use and no complaint is made of his adopting that course.

The issue arising on the application was whether the proposed use fell within Class C3 of the Town and Country Planning (Use Classes) Order 1987. If it did, the use would be lawful without a separate grant of planning permission. If it did not but fell instead within Class C2, a grant of planning permission would be required if the change of use was material.

Section 57 of the 1990 Act generally requires planning permission for the carrying out of any development of land. Section 55(1) defines development as including the making of any material change of use, subject to certain exceptions. Sub-section (2) sets out certain uses of land which will not be taken to involve development, and they include in paragraph (f): buildings or land used for the purpose of any class specified in an order made by the Secretary of State. The relevant order is the Use Classes Order 1987, to which I have already referred. Within that order, Classes C2 and C3 are described as follows:

"Care" is defined in paragraph 2 of the Use Classes Order as follows:

So a change from the use of a dwellinghouse as a family home to use for not more than six residents living together as a single household (including a household where care is provided for residents) will not constitute development.

Guidance on the relevant classes is to be found in Department of Environment Circular 13/87. The most material paragraph is paragraph 27, which states:

Section 192 of the 1990 Act makes provision for a person wishing to ascertain whether a proposed use of a building would be lawful to apply for that purpose to the local planning authority. It is unnecessary for me to set out the detailed provisions concerning such applications.

The application of Class C2 and Class C3 to a situation where occupants of a house were in receipt of full time care was considered in North Devon District Council v First Secretary of State [2003] JPL 1191. In that case, the property in question was occupied by two children under the supervision of a team of non-resident adult carers operating 8-hour shifts so that there were two non-resident staff on duty in the house at all times. Collins J held that that situation did not fall within Class C3. His essential reasoning was, first, and very importantly, that the children themselves could not be regarded as forming a household. Thus, he stated in paragraph 16:

The next step in the reasoning was that the non-residential carers could not be regarded as living with the children in a single household. Collins J stated at paragraph 17:

In paragraphs 18 and 19, he went on to express disagreement with a judgment of Popplewell J in R v Bromley London Borough Council ex.p Sinclair [1991] 3 PLR 60. He said this:

Although holding that the inspector had been wrong to find that the use in that case fell within Class C3 rather than Class C2, Collins J went on to uphold the inspector's alternative finding that if it was a Class C2 use, the change of use was not material. Accordingly, he dismissed the judicial review application.

Having considered the legal background, I turn to the decision letter in the present case.

The inspector, in paragraph 3 of the decision letter, identified the only question as being whether the use fell within Class C2 or C3(b). He described the property as follows in paragraph 4:

I have already quoted the first part of paragraph 5. After that passage, the inspector stated that the question that needed to be determined was whether the nature of the occupation of those living in the house was as a single household. He observed that the Council argued that the test was whether the occupation was based on a communal basis with shared living rooms, toilets and bathing facilities, kitchen and cooking, shared services, leisure time and food purchases. He observed that this was not disputed by the Evesleigh Group. Indeed, it was argued that that was basically how the residents did occupy the property. He went on as follows in paragraphs 6 to 10:

The challenge that is brought by the Council comes under two broad heads. The first is expressed in this way in Mr Wald's skeleton argument. It is submitted that the inspector, in failing to consider the North Devon case, failed to have regard to a material consideration and/or failed to give any or any adequate reasons for failing to apply the North Devon case. So the essential points raised under this ground concern the application of the North Devon case and the regard, if any, had to it by the inspector.

It is not in dispute that a copy of the North Devon judgment was sent to the Planning Inspectorate by the Council in April 2003, which was before the date of the site visit. Mr Strachan has told me on instructions, although it is not formally in evidence, that the inspector himself received a copy of the judgment. It is true that the inspector does not refer in terms to the judgment in his decision, but, in my view, it is a clear inference from the circumstances as a whole that he had a copy of it and he had the judgment well in mind. It is to be noted that after the date when a copy of the judgment was sent to the Inspectorate, a request for information was made by the inspector. He wrote to the parties requesting information as to whether the residents of the property were to be adults or children and as to the nature of their learning disability. The letter itself, dated 2 July 2003, observes that two letters received from interested persons referred to children being cared for at the property and mentions vagueness in the expression "learning disability" that had been used in the previous representations.

In response to that, the appellant submitted a reply giving an explanation of the meaning of a learning disability and stating that they were not registered to take any person under 18 or over 65 in the house. That the application related only to occupation by adults and not to occupation by children is something that the inspector took pains to emphasise in the decision. That is apparent from the passages I have already read, and he spells out in paragraph 2 that he deals with the appeal expressly on the basis of occupants between the ages of 18 and 65. The obvious explanation for his seeking such information and referring to it in this way in his decision is that he was well aware of what was said in the North Devon judgment in respect of a case of occupation by children. He was anxious to check that this was not the factual situation with which he was dealing in the present case, and anxious to spell that out in the decision. I do not accept Mr Wald's submission that the enquiry was prompted simply by the fact that interested persons had mentioned the presence of children on the premises. In my view, that would not have been enough to trigger this line of enquiry and reasoning, whereas the inspector's appreciation of the North Devon judgment provides a convincing explanation for what happened. Thus I am satisfied that there was no failure to have regard to that judgment.

It is not, in those circumstances, necessary to consider a point raised by Mr Strachan as to whether a decided legal authority is itself capable of being material consideration. The point made by Mr Strachan is that one does not need to refer to decided cases as material considerations. The decision-maker either gets the law right or does not, and it is in that context that one would look at the relevant case law.

The contention that the inspector failed to give any or any adequate reasons for failing to apply the North Devon judgment is, in my view, misconceived. What the inspector had to apply was the statutory provisions. He did apply those provisions and he gave adequate and intelligible reasons for the conclusion he reached in applying them. What he found was that the four residents, the people with learning difficulties, would occupy the house as a single household, and he explained the test that he applied, which does not appear in itself to have been the subject of any material dispute, and the factors that led him to the conclusion he reached.

It was not incumbent upon him to address the North Devon judgment in terms, or to explain why he reached a different conclusion on the particular facts of the present case from the conclusion reached on different facts in the North Devon case. In this connection, it is important to stress that no argument had been addressed by the parties in terms of the kind of issues that were at the heart of the North Devon judgment, let alone by reference to the North Devon judgment itself. It is unsurprising that the case was not referred to in the main submissions since it postdated those submissions, but the fact is that there was, in my view, nothing in the written representations that raised issues of the kind that the North Devon judgment was concerned with. That case and the way in which it was decided had not become an issue between the parties, let alone a principal controversial issue.

At all material times the Council's objection to the use falling within Class C3 was on the basis that the ground floor annexe of the house was physically and functionally separate from the rest of the house, and that the degree of separation between the three residents of the main part of the house and the one resident of the annexe was such that the four residents would not be living together as a single household.

I have considered passages in the original report to the Council, that is to say the officer's report to the Council, where, in my view, that is the essential basis upon which objection was raised. I am wholly unpersuaded by an argument by Mr Wald that the basis of objection related to the inter-relationship between the residents and the carers, or was somehow based upon the particular role of the carers.

The Council's written representations to the inspector likewise focused, as it seems to me, on the particular question of whether the annexe was physically and functionally separate from the rest of the house, and the general application of the test for living together as a single household as it related to the four residents. Indeed, the written representations referred in paragraph 5.4 to a decision of the Secretary of State which concluded that the level of care and the manner in which it was provided was not relevant in determining the lawfulness of use. What mattered was the manner in which the occupants lived together as a single household, and it was that question which was addressed in the written representations. The only relevance attached to the carers was that, because they were non-resident, they did not fall to be taken into account in calculating the number of residents, which was important because a maximum of six is permitted under Class C3(b). There was no suggestion that issues of the kind debated in the North Devon case concerning the level of care and the non-residential status of carers made any difference to the analysis beyond that point about maximum numbers.

When a copy of the North Devon judgment was sent to the Inspectorate, it was done under cover of a letter which stated:

There was no attempt to put forward any submissions as to its application. I reject the contention advanced by Mr Wald that there was an implied argument advanced that the present case fell within the scope of the reasoning in the North Devon judgment. Even when information was provided to the inspector by the appellant to the effect that there would be no children at the property, no attempt was made by the Council to raise issues concerning the application of the North Devon judgment. All of this underlines the fact that it was simply not an issue between the parties and, in my view, therefore, it was not one that the inspector was required to deal with in his decision. I reject the argument as to inadequacy of reasons.

Of course, the North Devon judgment is potentially relevant now insofar as it is alleged that the inspector erred in law by failing to apply some principle to be derived from that judgment. I have to say that that is not how the case is advanced in the written material before me, including the Council's skeleton argument. Nonetheless, the point has been put forward orally by Mr Wald, at least to some extent, so let me make clear my views on that issue. I do not read the North Devon judgment as laying down any principle inconsistent with the conclusion reached by the inspector in this case. It is not said, for example, by Collins J that the provision of full-time care by non-resident carers necessarily precludes a finding of occupation as a single household. What it does is focus, first, on those who are in occupation and ask whether they themselves do constitute a household. It holds, for reasons set out in the judgment, that children cannot by themselves be regarded as constituting a household. Whether or not that is right is not something that I need to decide because that is not this case. This case is not concerned with children, and what is said by Collins J in respect of children does not govern this case.

The observations he makes at the end of paragraph 16 of his judgment do indeed appear to go wider, but for my part I would be very reluctant to read them as purporting to lay down a principle that those who suffer from disability and who need care in the community can never by themselves constitute a household, that is to say that the reasoning applied to children necessarily and invariably applies to them too. If the observations are intended to lay down such a principle, they are obiter, I do not need to follow them and I would decline to follow them.

In my judgment, the correct position is that, in every case, the judgment to be made in the application of the criteria in Class C3 depends upon the specific facts of the individual case. There may indeed be cases where, having regard to the nature of the disability suffered and the degree of care required, persons resident in a house cannot sensibly be said to constitute a household. But there will be other cases, and in my judgment this is one of them, where persons resident in a house can sensibly be said to constitute a household notwithstanding that they have some disability and need care. That is so even if the need is for full-time care. I would reject any suggestion that in a case where care is needed for those under a disability, Class C3 can apply only if the carers are in residence in the same property as those for whom they are caring. That would seem to me to run counter to the language of Class C3 itself and to the underlying policy.

If the carers are resident, the question is whether they, together with the other residents, constitute a single household. But if they are not resident, there remains a perfectly sensible question whether those who are resident, that is to say those who are in receipt of care, themselves constitute a single household. That is a question essentially to be answered on the facts. It was a question considered on the facts of this case by the inspector and answered affirmatively by him.

What I have said seems to me to be in line with the approach adopted in ex.p Sinclair, to which I refer notwithstanding that it was only a judgment on a permission application, because Collins J referred to it in his substantive judgment.

The approach also seems to me to be in line with the broad guidance given by the judgment of the Court of Appeal in R(Hossack) v Kettering Borough Council [2002] JPL 1206, a case which has not featured in any of the written material before me, including the skeleton arguments, but to which my attention has been drawn in the course of argument this afternoon. That case concerned a different aspect of the application of Class C3. What is important about it, as it seems to me, is the rejection by the Court of Appeal of a prescriptive approach and the endorsement of an approach that treats the application of Class C3 as a matter of fact and degree in every case. In the course of the leading judgment, given by Simon Brown LJ, there is an analysis of the authorities, beginning with Simmons v Pizzey [1979] AC 37 in which Lord Hailsham referred to various definitions of the expression "household" and stated:

The subsequent examination of the authorities included those where various factors were identified as helpful considerations to bear in mind when determining whether the occupants of a property are members of a single household. But at the end of his judgment Simon Brown LJ came back to Lord Hailsham's observation in Simmons v Pizzey, that there are "no certain indicia, the presence or absence of any of which is by itself conclusive".

It is unnecessary to look at the various factors that were considered in Hossack. The case is relevant in the present context, as it seems to me, because of its emphasis on fact and degree. That accords with the approach that I would take to the present question. There is no indication that Hossack was cited to Collins J in the North Devon judgment, but in any event, for the reasons I have given, I do not regard the North Devon judgment as laying down a principle applicable to the present case, and certainly I do not regard it as laying down a principle determinative of the present case. In my judgment, if and insofar as an error of law on the part of the inspector is alleged, I would reject the submission for the reasons I have given. It seems to me that his approach in evaluating the particular facts of the case was perfectly correct and, subject to the second ground to which I now come, cannot sensibly be criticised.

Ground 2 relates to the basis of objection that was, in fact, advanced by the Council before the inspector concerning the alleged physical and functional separation of the annexe. Mr Wald submits that the layout of the property and the use to which it was put were such that the inspector's decision that the four residents were living together as a single household was Wednesbury unreasonable. He has reminded me of what was said by the Evesleigh Group in a letter of 20 September 2002 in providing information in support of the application. That letter stated, amongst other things:

Reference was made in the Council's written representations to a site visit undertaken by a Council officer in February 2003, which was said to have confirmed that the ground floor annexe was physically and functionally separate from the rest of the house. This was also said to have been verified by a care manager during a visit, who confirmed that the severity of this resident's needs and behaviour required her to be separated from the other three residents. This necessitated accommodation specifically tailored to her individual care needs through the provision of a self-contained living/dining room, bathroom, kitchen conservatory, separate side entrance and rear garden (see paragraph 5.7 of the written submissions).

A somewhat different situation seems to have been apparent at the time of the site visit undertaken by the inspector. A note of that site visit, on 28 May 2003, records:

Notwithstanding the apparent differences between what had been seen in February and in May, Mr Wald submits that when one looks at the physical and functional characteristics of the property, it can be seen that one has here two distinct dwellinghouses and not something that could be used by the occupants as a single household. He submits that the inspector's conclusion that the property was capable of being used as a single household was a decision that no reasonable decision-maker could have made.

Mr Strachan takes issue with that line of argument, submitting that it is without any merit. He submits that there is simply no basis to suggest that the conclusion reached based on the inspector's assessment of the evidence and his site visit was irrational. Mr Strachan points out that, as identified in the decision letter, the Council itself had accepted that the property was capable of being used as a single dwellinghouse and had been so used by a family and grandparents at a time when the grandparents lived in the granny annexe. He submits that it cannot, therefore, reasonably be argued that the physical layout is such as to render irrational the inspector's conclusions in relation to the proposed use.

Moreover, as the inspector pointed out in paragraph 9 of the decision letter, even if the use was more as the Council suggested, this would be even more akin to the previous use as a dwellinghouse and would therefore not assist the Council's case. Mr Strachan stresses that the question for the inspector was not whether some historical use of the property constituted use as a single dwellinghouse, but whether use of the kind proposed in the application would constitute use as a single dwellinghouse. The site visit gave the inspector an opportunity to examine the premises and the way in which they were being used at the time, but ultimately it was a question of whether a certificate should be issued that the proposed use was lawful. As to that, it is submitted the inspector made a careful appraisal of the situation and plainly reached a rational conclusion.

I accept Mr Strachan's submissions. The inspector had ample information from the written material before him and from what he had seen on his site visit to be able to reach a view on this question. It is correct that he was concerned with the proposed use, but no doubt his assessment was illuminated by what he saw in practice on his site visit. He was aware of the evidence that usage appeared to be different on the Council officer's earlier visit. There is nothing to show that he failed to take into account any of the evidence or representations before him. This was pre-eminently a question of fact and degree for the inspector. His conclusion that the proposed use would amount to use as a dwellinghouse by the occupants living together as a single household was carefully reasoned and, in my view, unassailable. I reject the contention under ground 2 that it was not reasonably open to the inspector to arrive at the decision set out in the decision letter.

Accordingly, both grounds of challenge fail and the claim is dismissed.

MR STRACHAN: My Lord, I am grateful. Could I just raise one matter?

MR JUSTICE RICHARDS: Yes.

MR STRACHAN: I suspect it arises --

MR JUSTICE RICHARDS: Have I got something wrong in what I said?

MR STRACHAN: It is an error on my part, my Lord. In my skeleton I identified that this was the inspector allowing an appeal under section 78 and your Lordship referred to that. It was an appeal under section 195.

MR JUSTICE RICHARDS: Of course, because it is a certificate of lawful use. I am grateful. I will correct that in the approved judgment.

MR STRACHAN: My Lord, the only other matter is that I do ask, therefore, that the claimant pay the first defendant's costs. My Lord, there is a summary assessment schedule and I understand that the costs are agreed, but I can hand up the schedule to you. The total which is agreed with the claimant is £3,457. If your Lordship is content with that, we would ask for an order in those terms.

MR JUSTICE RICHARDS: I have that schedule. Mr Wald, you cannot resist?

MR WALD: No, my Lord.

MR JUSTICE RICHARDS: In that case there will be an order that the Council pays the Secretary of State's costs, to be summarily assessed in the agreed sum of £3,457. Thank you very much.