Rectory Homes Ltd v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWHC 2098 (Admin) |
| Date | 31 July 2020 |
| Docket Number | Case No: CO/4682/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2020] EWHC 2098 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/4682/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Rupert Warren QC and Mr. Matthew Fraser (instructed by Eversheds Sutherland LLP) for the Claimant
Mr. Leon Glenister (instructed by Government Legal Department) for the Defendant
The Interested Party did not attend the hearing
Hearing date: 8 July 2020
Approved Judgment
Introduction
The Claimant, Rectory Homes Limited, applies under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to challenge the decision of the Defendant's Inspector dated 21 October 2019 dismissing their appeal against the decision of South Oxfordshire District Council (“SODC”) to refuse planning permission for development at The Elms, Upper High Street, Thame OX9 2DN, namely “the erection of a ‘Housing with Care’ development (Use Class C2), a communal residents centre” and other works.
The central question in the challenge is whether, as the Claimant submits, on a proper interpretation of the development plan, a proposal for extra care housing within the C2 Use Class does not fall within the scope of the policy requiring schemes for 3 or more dwellings to provide affordable housing.
The appeal site comprises 2.94 ha of land in the centre of Thame to the south of The Elms, a 19 th century house and Grade II listed building, and of dwellings facing Park Street. Elms Park lies to the east, Elms Road to the south and properties fronting Nelson Street to the west. The site lies within the Thame Conservation Area. It is an open area of privately-owned parkland and mature trees.
The Thame Neighbourhood Plan (“TNP”) allocates the site for up to 45 dwellings. On 5 August 2015 planning permission was granted for the erection of 37 dwellings and the creation of new public open space (“the 2015 scheme”). It is common ground that this development was begun and the permission remains extant. The Inspector accepted evidence showing that there was a real possibility of this development being completed in the event of the appeal being dismissed. In other words, he accepted that the 2015 scheme should be taken into account as a “fallback” and gave substantial weight “to this material consideration” (DL 66). A linked s.106 obligation required a financial contribution to be made to off-site affordable housing equivalent to 40% of the 37 dwellings to be built on site. It does not appear that the obligation to make that payment had yet been triggered.
The appeal scheme would provide 78 units of residential accommodation. Each unit would have its own front door, between one and four bedrooms, a living room, bathroom and kitchen allowing for independent living (paragraphs 7–8 of the Statement of Facts and Grounds).
By clause 1.1 of a s.106 agreement dated 13 September 2019 the “development” was defined as:-
“the erection of a ‘Housing with Care’ development (Use Class C2) for 78 open market extra care Dwellings and a communal residents centre”
The residential units are referred to as “dwellings” or “extra care dwellings” in several parts of the agreement. The term dwelling is defined in clause 1.1 as:-
“a building erected or proposed to be erected upon the Site pursuant to the Planning Permission or (where clause 6.10 applies) a Section 73 Permission or part of such building designed for residential occupation as extra care Dwellings in accordance with this Agreement and the Planning Permission and includes flats”
The s. 106 agreement restricted the occupation of each “dwelling” to up to 2 people (see clause 2.1 of schedule 2) at least one of whom must be aged 65 or more and in need of at least 2 hours of “personal care” a week (“the primary resident”). The level of care required is likely to increase with age and is to be the subject of regular assessment at least once a year. A person who is not themselves aged 65 or more and in need of such care, may only live in one of the dwellings if he or she is the spouse or partner of the primary resident of that dwelling. Accordingly, the drafting of the s.106 agreement proceeded on the basis that the provision of residential accommodation under the C2 Use Class could include an extra care dwelling in which no more than 1 person or two 2 people living as a couple may reside.
The site is to be managed by a property services company working together with a CQC registered care provider for the provision of on-site personal and domiciliary care. All residents would be entitled to use the communal facilities in the residents' centre, which included a lounge/function room, dining area, 3 treatment rooms and gym. The services and facilities, including the maintenance of communal spaces, would be paid for through a service charge on each residential unit. The section 106 obligation would require each “primary resident” of a dwelling to buy a “basic care package” (as defined) to meet their needs in accordance with a health assessment (clause 2.12 of schedule 2). The personal care services which are available are defined in the agreement. The owner of the site and the developer covenanted “to ensure that the personal care and other support services appropriate to the assessed need of the primary resident of the dwelling (so as to allow them to live independently) is available to them if required by their individual health assessment, 24 hours a day and seven days a week” (clause 2.9).
The remainder of this judgment is set out under the following headings:-
Development Plan Policies
| Development plan policies | 10 – 17 |
| The main issues in the planning appeal | 18 – 22 |
| Issues in the planning appeal on extra care and affordable housing | 23 – 38 |
| The Inspector's conclusions on the overall planning balance | 39 |
| Summary of the grounds of challenge | 40 – 41 |
| Ground 2 | 42 – 82 |
| Ground 1 | 83 – 93 |
| Ground 3 | 94 – 100 |
| Ground 4 | 101 – 109 |
| Ground 5 | 110 – 112 |
| Conclusion | 113 |
The South Oxfordshire Core Strategy was adopted in December 2012 and forms part of the statutory development plan.
Policy CSH3 sets out the circumstances in which development will be required to provide affordable housing:-
“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.
• In cases where the 40% calculation provides a part unit a financial contribution will be sought equivalent to that part unit;
• A tenure mix of 75% social rented and 25% intermediate housing will be sought;
• With the exception of part units the affordable housing should be provided on site and the affordable housing should be mixed with the market housing;
• The housing should meet required standards and should be of a size and type which meets the requirements of those in housing need.”
Paragraph 7.29 of the explanatory text of the Strategy states that, according to the Housing Needs Assessment prepared in 2008 for the plan process, the annual need for new affordable housing in the district is 530 units. Because that was almost equivalent to the full housing allocation assigned to the District by the former South East Plan of 547 units a year until 2026, an affordable housing target based on the annual need figure would have been unrealistic and so the core strategy sought to maximise the amount of affordable housing required while ensuring that housing schemes are deliverable. A Housing Viability Study carried out as part of the preparation of the Core Strategy supported the use of both the 3 unit threshold for the requirement to provide affordable housing and the 40% target, subject to “individual site circumstances” and the carrying out of a full viability appraisal for development on any particular site (paragraphs 7.29 to 7.32 of the Core Strategy).
Policy CSH4 deals with the different types of housing needed:-
“A mix of dwelling types and sizes to meet the needs of current and future households will be sought on all new residential developments.
• At least 10 per cent of market housing on sites of 10 dwellings or more should be designed to meet current Lifetime Homes standards.
• In the case of affordable housing all ground-floor properties should be designed to meet current Lifetime Homes standards.
• The provision of dwellings for people with additional special needs will be sought as part of the overall affordable housing percentage.
• Specialist accommodation for older people should be provided in the new greenfield neighbourhoods identified in this strategy and will be permitted at other suitable locations.”
The third bullet point is elaborated by paragraph 7.39:-
“The aim of government policy is to provide support for people to be able to live in or remain in their own homes. This can include homes adapted for people with disabilities and/or in housing schemes which provide specific forms of support. These include people with disabilities, older people and vulnerable young people. Within the affordable housing element of the larger developments, we will look for scheme(s) to meet the needs of specific vulnerable groups.”
Paragraphs 7.41 to 7.42 of the explanatory text of the Core Strategy deals with “specialist accommodation” for older people:-
“7.41. There are a range of models that can play a part in providing specialist accommodation for the elderly. These include sheltered and...
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