R (Hossack) v Kettering BC and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lightman,MR JUSTICE LIGHTMAN,Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] EWHC 1929 (Admin),[2002] EWHC 493 (Admin) |
| Docket Number | Case No: CO/274/2003,Case No: CO/3725/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2003 |
[2002] EWHC 493 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Lightman
Case No: CO/3725/2001
Ms Hannah Markham (instructed by Yvonne Hossack, Solicitor, Eskdall House, Eskdall Street, Kettering, Northamptonshire NN16 8RG) for the Claimant
Mr Richard Banwell (instructed by Toller Hales & Colcutt, Castilian Chambers, 2 Castilian Street, Northampton NN1 1JX) for the Defendant
INTRODUCTION
By this application, the Applicant Yvonne Hossack ("the Applicant") challenges in judicial review proceedings the decision ("the Decision") of the Defendant Kettering Borough Council ("the Council") made on or about the 10th May 2001 that the use by the Interested Party English Churches Housing Group ("ECHG") of each of the three properties, Nos 83 ("No 83"), 85 ("No 85") and 87 ("No 87") Broadway, Kettering ("the Properties") falls within Class C3 of the Town and Country Planning (Use Classes) Order 1987 ("the 1987 Order"). The essential issue before me is the validity of the Decision and in particular whether the Council was entitled to conclude that the use of each of the properties is by the residents living together as a single household. The Applicant contends that the Council was not so entitled: the only conclusion which it could reasonably reach was that each of the Properties is used either singly or together as a hostel.
FACTS
The Applicant lives at No 89 Broadway, Kettering, next door to the Properties, and is directly interested in, as she is directed affected by, the use of the Properties.
For some 11 years ECHG has provided temporary accommodation for young people in need of accommodation at one or more of the Properties. The present day position is that all the Properties are used for these purposes. The Applicant's evidence establishes that over recent years she and her family have suffered substantially from the unlawful and anti-social behaviour of residents of the Properties and that she has had occasion to complain about the use of the Properties and the behaviour of the residents both to the Council and the ECHG. The primary focus of dispute between her and the Council has been whether the current use of the Properties constitutes a breach of planning law.
The lawful use of each of the Properties for planning purposes is use falling within Class C3 of the 1987 Order which reads as follows:
"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)."
Excluded from such lawful use is use as a hostel. The Applicant has repeatedly complained to the Council that the use of each of the Properties does not in fact fall within Class C3: their use is as hostels for which planning permission is required and has not been obtained.
It is unnecessary to detail the lengthy history or correspondence. It is sufficient to focus on recent events. On the 13th September 1999 Mr Shield, the Council's Senior Monitoring and Enforcement Officer, Development Control, reported to the Council's Head of Legal Services as follows:
" 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 [sic] 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 residential support worker.
2. There is not (and never has been) any 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 an 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 that 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 on the basis of Mr Shield's report made the Decision (which was to the same effect) and on the 10th May 2001, the Council wrote to the Applicant's solicitors informing her of the Decision.
The Applicant made a secondary complaint that there was unlawful use made of No 83 for office purposes with accommodation for a support worker. Mr Shield inspected No 83 and found that three bedrooms were being used as offices and one room as accommodation for the support worker. Mr Shield decided that this constituted a material change of use from its lawful use (a dwelling house within Class C3) and that (in default of an application for and grant of planning permission for this use) enforcement action should be considered. On the 17th May 2001 Mr Shield wrote to ECHG informing it of this decision. ECHG responded that it would discontinue this use. The Council thereupon blandly told the Applicant that the necessary remedial action had been taken. The Council was not forthcoming as to what this was. This reticence was the occasion for a claim by the Applicant for relief in regard to the use of No 83 for office purposes. For the first time at the hearing and at my specific direction the Council disclosed that to meet this complaint it had confined use as offices to one bedroom only and moved the accommodation for a support worker to a bedroom at No 85.
On this application, beyond or in elaboration of the matters of fact set out in Mr Shield's report dated the 13th September 1999, the following facts are common ground:
a) the goal of ECHG's project in respect of the Properties is to provide temporary accommodation for those in need (and in particular to get them off the streets) with a view to subsequent resettlement;
b) there is a steady turnover of residents. Their stay may be longer or shorter but the average is about 3–4 months;
c) ECHG selects the residents, decides how long they will stay and when they shall leave and allocates rooms to them;
d) there is a support worker 24 hours a day present at one of the Properties and one bedroom is allocated to the night staff. This was originally at No 83, but when the challenge was made to the office use of No 83 and to "see off" this challenge, this was changed to a...
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