R (Hossack) v Kettering BC and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Robert Walker,Lord Justice Clarke |
| Judgment Date | 25 June 2002 |
| Neutral Citation | [2002] EWCA Civ 886 |
| Docket Number | Case No: QBACF/02/0738 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 2002 |
[2002] EWCA Civ 886
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Lightman)
Lord Justice Simon Brown
Lord Justice Robert Walker and
Lord Justice Clarke
Case No: QBACF/02/0738
Simon Bird Esq
(instructed by Head of Legal Services, Kettering Borough Council) for the Appellant
Ms Hannah Markham
(instructed by Messrs Wood Shaw & Co) for the Respondent
Introduction
The Interested Party, English Churches Housing Group ("ECHG"), maintain some 28 houses within the United Kingdom to provide temporary accommodation and support for small groups (up to six people) of those in need—young homeless people, people suffering from mental health problems, people with learning disabilities, people with drug and alcohol addictions and the like. On or about 10 May 2001 the appellant authority ("the Council") decided that the use of three of ECHG's houses, Nos 83, 85 and 87 Broadway, Kettering ("the Properties") falls within Class C3 of the Town and Country Planning (Use Classes) Order 1987 ("the 1987 Order"). Class C3, entitled Dwelling Houses, encompasses:
"Use as a dwelling house (whether or not as a sole or main residence) —
(a) by a single person or by people living together as a family, or
(b) by not more than six residents living together as a single household (including a household where care is provided for residents)."
"Care" is defined by article 2 of the 1987 Order to mean "personal care for people in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder …".
The decision turned principally on whether the residents of the Properties were "living together as a single household".
The Council's decision was challenged by the respondent, who lives next-door to the Properties at No 89 Broadway, and contends that their use is as hostels (or, indeed, as a single hostel), use as a hostel being excluded from any of the specified classes by article 3(6)(i) of the 1987 Order.
On 25 March 2002 Lightman J quashed the Council's decision and directed them to re-determine the lawfulness of the use of the properties in the light of his judgment.
The Council now appeal to this court by permission of Buxton LJ given on 24 April 2002 (a limited permission which we ourselves extended at the hearing). The Council do not, let me immediately make plain, seek to resist the quashing of their original decision. Rather they accept that they failed in reaching it to take account of certain material considerations and so must now re-determine the use of the Properties. What, however, they dispute is the correctness of the approach laid down by the judge to the issues which, on reconsideration of the matter, will determine the lawfulness or otherwise of the Properties' use. They dispute in particular the judge's apparent conclusion that for residents to be regarded as living together in a single household they must be bound by a relationship beyond that of "a common need for accommodation, support and resettlement".
The respondent for her part accepts that the judge went too far in appearing to stipulate such a pre-condition for a single household and in appearing himself effectively to pre-determine the issue as to the lawfulness of the Properties' use.
Whilst, however, there remains little difference between the parties as to how this appeal should be resolved, the correct approach to the concept of the single household is a matter of some general importance and it would be wrong to overturn the judgment simply upon a concession.
The facts
With that brief introduction let me at once turn to the relevant facts. These substantially are to be found in a report dated 13 September 1999 submitted by Mr Shields, the Council's Senior Monitoring and Enforcement Officer, Development Control, to their Head of Legal Services:
" 83, 85 and 87 Broadway, Kettering
I write with regard to the above properties and in response to recent correspondence concerning the same.
I inspected the above properties on Thursday 8 September 1999 and discussed the use and operation of them with the project worker Mrs R Silk. During our discussion Mrs Silk responded to a number of my enquiries as below:
1. 83, 85 and 87 Broadway have at any time no more than five residents in each property, but 83 also has a room used for overnight occupation for a resident support worker.
2. There is not (and never has been) an internal access between 83 and 85 Broadway.
3. 85 and 87 Broadway share an internal access door on the first floor, this is kept permanently locked and only ever used by Mrs Silk or another member of staff. It is not available for the use of residents.
4 All bedrooms have locks on the bedroom doors but not all residents choose to use them.
5. All bedrooms have a wash hand basin for the use of each occupant, but no other individual facilities.
6. The residents (within each house) share communally all cooking, dining, food preparation and food storage facilities. There are no individual fridge/food storage facilities.
7. The residents (within each house) share communally the lounge and bathroom facilities and the use of the garden area of each house.
8. The residents (within each house) share communally the cleaning responsibilities and often cook 'house meals' for the other residents sharing the costs of jointly purchased food.
9. Social activities are arranged for (and often by) the residents of each house for the benefit of each household group. Mrs Silk stressed the point that it was an aim of ECHG to promote and encourage integrated communal living and shared responsibility wherever possible. Although the project is financially supported residents have to contribute towards the running costs of 'their' house. There are no separate supplies of services (electricity, gas, water, etc) or associated individual billing.
10. Residents in each house are given an external door key to their own respective house only—not to the other two houses.
During my inspection of the three properties I did not find anything which contradicted Mrs Silk's explanation of the way in which the properties were occupied. In each house all the lounge, dining, bathroom, kitchen and food storage and preparation facilities appeared to be shared as described by Mrs Silk. I saw residents' cleaning rosters pinned to the walls in 85 and 87 Broadway.
In essence the only physically discernible difference I found between any of these three properties and that of any average family-occupied house was that there were locks fitted to each of the bedroom doors. There are no physical alterations to the exterior of the houses and appear in the street scene as three typical terraced properties. Access right across the rear of the three properties is available primarily due to fencing panels having been removed or damaged.
Mrs Silk acknowledged that there were occasional problems with difficult residents but if they were considered unmanageable those residents would be referred to a more appropriate organisation. She went on to say that most of the problems of noise disturbance to local residents was in fact caused by people (largely uninvited) visiting the houses, and in this respect she anticipated that the deployment of CCTV cameras would do much to reduce such disturbance to a minimum.
Conclusion
There has been no material change of use of the three properties at 83, 85 and 87 Broadway, Kettering, and they remain individually within the C3 use class as described in the Town and Country Planning (Use Classes Order) 1987:
'Use as a dwelling house (whether or not as a sole or main residence) … by not more than six residents living together as a single household (including a household where care is provided for residents).'"
The Council's eventual decision in May 2001 was reached on the basis of Mr Shields' report and was notified to the respondent's solicitors. Her evidence, I should note, establishes that over recent years she and her family have suffered considerably from the anti-social behaviour of some of the residents of the Properties and she is concerned also at what she conceives to be the fire risks presented by the Properties (both to the residents and to herself and her family as immediate neighbours). It is her contention that the use of the Properties is as hostels for which planning permission is required and has not been obtained. She furthermore contends that each of the properties is a "house in multiple occupation" within the meaning of Part XI of the Housing Act 1985—defined by section 345 as meaning "a house which is occupied by persons who do not form a single household"—which is thereby made subject to the health and safety controls provided by that legislation including most particularly the requirement for adequate means of escape from fire and other fire precautions.
The authorities
The leading authorities as to what constitutes a single household were all decided in the context of the legislation governing houses in multiple occupation. I shall refer to three only. The first, Simmons v Pizzey [1979] AC 37, concerned a refuge for battered wives occupied by a shifting population of up to 75 women. Lord Hailsham referred to various dictionary definitions of "household" and also definitions to be found in a number of...
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