Hossack, R (on the application of) v Kettering Borough Council & Anor [2003] EWHC 1929 (Admin)

Case No CO/274/2003

[2003] EWHC 1929 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 31 July 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE RICHARDS

Between

R (on the application of YVONNE HOSSACK)Claimant

KETTERING BOROUGH COUNCILDefendant

ENGLISH CHURCHES HOUSING GROUPInterested Party

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Miss Hannah Markham (instructed by Hossack (Solicitors)) for Claimant

Mr John Litton (instructed by Kettering Borough Council Legal Department) for Defendant

Judgment

As Approved by the Court

[1]The claimant, Mrs Hossack, lives at 89 Broadway, Kettering. The three neighbouring houses at 83, 85 and 87 Broadway are owned by English Churches Housing Group (“ECHG”) and are used to provide temporary accommodation for young people in need, many of whom have troubled backgrounds.

[2]The claimant has complained for some years about unlawful and anti-social behaviour on the part of the residents of the neighbouring houses and has contended that the use of the houses is in breach of planning controls. The ECHG’s position is that the use of the properties is a lawful use as a dwelling house falling within Class C3 of the Town and Country Planning (Use Classes) Order 1987. The claimant contends that the use does not fall within Class C3 but is a sui generis use of the houses as hostels and that this amounts to a material change of use for which ECHG has not obtained planning permission.

[3]In September 1999 Kettering Borough Council, the enforcement authority, determined that the use fell within Class C3. That decision was quashed by Lightman J on 25 March 2002. An appeal by the council to the Court of Appeal was limited to the correctness of the approach laid down by Lightman J for determining whether the use of the houses fell within Class C3. The Court of Appeal allowed the appeal and laid down principles that should guide the council in its fresh determination of the issue: see R (Hossack) v. Kettering Borough Council

[2002] EWCA Civ 886

[4]The council then re-determined the matter but, by a decision dated 22 October 2002, reached the same conclusion that the use fell within Class C3. By a further letter dated 14 January 2003 the council refused to reconsider the decision. The claimant now challenges the decision of 22 October 2002 and what is said to be a further decision dated 14 January 2003. The essential issue is whether the council acted reasonably in reaching the decision and in refusing to reconsider it without making more extensive inquiries than it did.

Legal framework

[5]Subject to certain exceptions, planning permission is required for the development of land. Development is defined by s.55 of the Town and Country Planning Act 1990 as including a material change of use. Section 55(2)(f), however, provides that use for any other purpose within the same “class” specified in an order by the Secretary of State shall not be taken to involve development. The relevant class is Class C3 of the 1987 Order, which relates to:

“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).”

[6]“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…”

[7]The leading judgment in the Court of Appeal in relation to the claimant’s challenge to the council’s earlier decision was given by Simon Brown LJ. In his examination of the authorities he pointed out that they were all decided in the context of the legislation governing houses in multiple occupation. He referred first, at paragraph 10, to the observations of Lord Hailsham in Simmons v. Pizzey

[1979] AC 37

that “both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive”.

[8]He then referred, at paragraphs 11-12, to Barnes v. Sheffield City Council

(1995) 27 HLR 719

, in which a group of five students was held to form a single household. He summarised nine factors identified by Sir Thomas Bingham MR in that case as helpful considerations to bear in mind when determining whether a house was being occupied as a single household or not. Although Simon Brown LJ stressed that he was summarising something that extended over nearly two pages, no issue is taken before me as to the accuracy or helpfulness of his summary:

“i) the origin of the tenancy; whether the residents arrived in a single group or were independently recruited by the landlord; ii) the extent to which the facilities were shared; iii) whether the occupants were responsible for the whole house (including the common parts) or just their particular rooms; iv) the extent to which the residents can and do lock their doors; v) the responsibility for filling vacancies: whether that of the existing occupants or the landlord; vi) the allocation of rooms: whether by the occupants or the landlord; vii) the size of the establishment; viii) the stability of the group; ix) the mode of living: to what extent communal and to what extent independent.”

[9]The third authority to which Simon Brown LJ referred was Rogers v. Islington Borough Council

(1999) 32 HLR 138

, which concerned a house with ten bedrooms, one retained by the owner for use some two months a year, the other nine let to people in their twenties who had just completed their further education and were embarking on careers in the professions or banking and who on average stayed for two years. He quoted passages from the judgments of Nourse and Swinton Thomas LJJ, in which an attempt was made to clarify the Barnes criteria and to lay down a working test. I hope that a sufficient flavour is given by referring to some of what was said by Nourse LJ. He stated inter alia that he did not think that the occupants could be said to form a household “unless there is between them a relationship which provides a particular reason for their living in the same house”. In relation to students living together he said:

“Their reason for living together may be taken to be a sharing in the comradeship, no less than the expenses, of university life. There is from the start a sufficient relationship between them for them to form a single houshold.”

He drew attention to two crucial distinctions between Barnes and Rogers, namely that in the former there were only four or five occupants whereas in the latter there were nine or ten, and that in the former the students, broadly speaking, came to the house as a pre-formed group for a pre-determined period whereas in the latter the occupants came to the house one by one, mostly for indefinite and necessarily dissimilar periods. On the facts it was held that the occupants in Rogers did not have a sufficient relationship for them to form a single household.

[10]Having reviewed those authorities, Simon Brown LJ considered the judgment of Lightman J at first instance in the case before him. In the course of that judgment Lightman J adopted a restrictive and prescriptive approach towards the application of Class C3, effectively leaving the council with no option but to conclude that there had been a material change of use from use of the houses as individual dwelling houses to use of all three together as a hostel.

[11]Before addressing Lightman J’s judgment, Simon Brown LJ referred to Circular No. 13/87, issued contemporaneously with the 1987 Order. Paragraph 27 of the circular provided:

“27. … The key element in the use of a dwelling house for other than family purposes is the concept of the single household. In the case of small residential care homes or nursing homes, staff and residents will probably not live as a single household and the use will therefore fall into the residential institution class, regardless of the size of the home. The single household concept will provide more certainty over the planning position of small group homes which play a major role in the government’s community care policy which is aimed at enabling disabled and mentally disordered people to live as normal lives as possible in touch with the community. … The class includes not only families or people living together under arrangements for providing care and support within the community, but also other groups of people such as students, not necessarily related to each other, who choose to live on a communal basis as a single household. The use of a dwelling house for other forms of “multiple occupation” will generally remain outside the scope of the Order and local planning authorities will continue to need to assess whether development is involved in each case on a fact and degree basis. However, most sheltered housing developments will fall within this class because they normally comprise a group of individual dwelling houses.”

[12]Simon Brown LJ then set out as follows his own approach and conclusion:

“25. Whilst I am disposed to accept that the authorities decided under the Housing Act 1985 apply equally to the construction and application of the 1987 Order – indeed, the contrary was not argued and it would plainly be most unsatisfactory to have a different approach to the meaning of a single household depending upon the context in which the question arises – it seems to me important to bear in mind two particular considerations. 26. The first is this: as stated in the Circular 13/87, Class C3 is intended and apt to include small community care homes consisting of up to six people (including resident staff) living together under arrangements for providing care and support within the community”

. The first of ‘two crucial distinctions” identified by Nourse LJ between Barnes and Rogers was that in the former there were only four or five occupants of the house whereas in the latter there were nine or ten. The very fact that Class C3 is restricted – save in the case of “people living together as a family’ – to households consisting of ‘not more than six residents’ is in my judgment a consideration of great importance in determining whether the residents form a single household. This is the second important question consideration to bear in mind. If there are no more than six residents living together in the same house, it seems to me altogether more likely that they are doing so as a single household than if there are (significantly) more than six: the smaller the number of occupants, the more intimate, integrated and cohesive their occupancy is likely to be and the more apt, therefore, to describe it as a single household. 27. In concluding that people coming to a house neither as a preformed group nor for a predetermined period with merely ‘a common need for accommodation, support and resettlement’ necessarily fail to enjoy a relationship which then enables them to be regarded as living in a single household, Lightman J seems to me to have gone rather further even than Nourse LJ went in Rogers. He certainly went further than Swinton Thomas LJ who concluded only that it would be ‘more difficult’ in the case of those not coming and going as a separate group to establish that they nonetheless form a single household – a view with which I respectfully agree. I do not understand Swinton Thomas LJ to have concluded that homogeneity in a group of residents (as with the students in Barnes) is a necessary pre-condition in all cases to their forming a single household. 28. It follows from all this that in my judgment the council must re-decide all the issues in the case – including not least whether the residents are properly to be regarded as occuping each house separately as a single household – in the light of the existing facts as they find them to be – and in this regard I should note that certain further evidence put before us respectively by the respondent and by Mr Richardson on behalf of ECHF is not easy to reconcile – and in the light of the law as I have sought to summarise it above. The precise nature of the relationship between the residents is clearly a material consideration – and a factor in the case which the Council now recognise was wrongly overlooked when they made their original decision. It is not, however, necessarily determinative of their decision that the residents of these properties were brought together only because of ‘a common need for accommodation, support and resettlement’. As Lord Hailsham said in Simmons v. Pizzey, there are ‘no certain indicia the presence or absence of any of which is by itself conclusive’.”

[13]I have thought it right to refer to the judgment of Simon Brown LJ at some length because it provides the specific context within which it fell to the council to make a fresh decision in the present case on whether the use of the houses at 83, 85 and 87 Broadway fell within Class C3 or not.

[14]At the hearing before me, however, there was no dispute over the following propositions of law as formulated in Mr Litton’s skeleton argument: i) Whether or not a use falls within Class C3 is principally a matter of planning judgment and, therefore, one which is within the exclusive province of the planning authority and the court should only intervene if the decision is one which it can say was irrational in the Wednesbury sense. ii) There is no litmus test which can be applied to determine whether a house was being occupied as a single household or not … But there are a number of factors which are helpful considerations. iii) Where a house is occupied by more than one person the occupants cannot be said to form a single household unless there is between them a relationship which provides a particular reason for their living in the same house … But there is no requirement that the occupiers should come to the house as a preformed group or for a predetermined period or that homogeneity in a group of residents is a necessary precondition to a group forming a single household … iv) Class C3 is intended to include small community care homes of up to six people who live together under arrangements for providing care support within the community and if there are more than six residents living together in the same house it is more likely that they are doing so as a single household … .

The Facts

[15]It is unnecessary to set out a detailed account of events leading up to the previous court proceedings and the judgment of the Court of Appeal.

[16]Following the Court of Appeal’s judgment a fresh investigation was carried out by Mr Thomas Shields, the senior monitoring and enforcement officer in the council’s development services division and a person with considerable experience in the relevant field. He wrote a detailed report on his investigation in a memorandum dated 18 September 2002. In that memorandum he stated at the outset:

“The starting point for determination purposes is the judgement of the Court Appeal on 25 June 2002 which I have studied carefully. The judgement indicates the need to re-consider all the issues in the case, and on that basis I have undertaken the process of determination by: (1) carrying out a detailed site inspection of all three houses (2) reviewing all relevant material the Council holds in its records (3) reviewing all the issues arising from the Court of Appeal judgement (4) assessing the current use of the properties in planning terms and in the context of (1) to (3) above”

[17]The memorandum then examined each of those heads in turn. In relation to (1), site inspection, Mr Shields stated:

“I inspected the three houses internally and externally on 16 July 2002, accompanied by ECHG’s Senior Supported Housing Officer Mrs Jacqueline Martin. While carrying out the inspections I discussed with Mrs Martin the daily use of the houses having regard to the relevant planning and other material considerations. I particularly sought information from her which was pertinent to those issues which related to occupancy, relationship, mode of living, and the other considerations referred to in the recent Court judgements. Throughout the whole process of determination I have sought to check, where possible, the accuracy of information passed to me verbally with other existing sources of information. While carrying out the inspections I made eleven pages of hand-written notes which I enclose for your information.”

[18]In relation to (2), review of relevant material, Mr Shields stated that he had reviewed “all the information held in the Council’s records relating to these properties which are relevant to the question of determining whether there has been a material change of use”, including (non-exhaustively) the development control section’s records, correspondence between ECHG and the council, complaints records and related correspondence and information, committee reports and minutes, all previous material relating to court decisions, and other similar material. In the exhibits to his witness statement Mr Shields has produced a chronological series of documents from the council’s records, all of which he says he considered before producing his report.

[19]Mr Shields observes in his witness statement that the records exhibited reveal that, following an earlier complaint, he had carried out an inspection of all three houses in May 2001 and had concluded that Nos 85 and 87 were still being used residentially within Class C3 but that No. 83 had no residents and the rooms were being used for office purposes. The position was drawn to the attention of ECHG. In November 2001 he inspected all three houses again and found that No. 83 had reverted to residential use with only one spare bedroom being used for incidental/ancillary office purposes. During his inspection of Nos 85 and 87 he found that they appeared to be used in exactly the same way as he had observed in previous visits. He also spoke separately during the November 2001 inspection to two male residents of No 85 and spent a few minutes asking each of them about their lives as residents in respect of sharing the accommodation and facilities. They independently confirmed that they often cooked “house” meals and ate together and socialised together; sometimes they might “club together” to rent videos to watch in the lounge together and order pizzas.

[20]To go back to the memorandum of 18 September 2002 and to move on to (3), issues arising from the Court of Appeal’s judgment, Mr Shields stated in the memorandum that he considered the following to be significant matters in re-determining the issue:(a) mode of occupation,

(b) the nature of the relationship between residents,

(d) whether the use of the three houses could rightly be considered to be three separate units, and

(e) the 1987 Order and Circular 13/87.

[21]He used those subject headings in examining (4), the current use of the properties. He stated:

“(a) Mode of occupation At the time of inspection on 16 July 2002 there are currently four residents in 83 Broadway, five residents in 85 Broadway, with one room used by an overnight support worker; and six residents in 87 Broadway. The layout of the houses both internally and externally are sketched and described in the site inspection notes. Residents in each house have a key to their own bedroom and to their own house only, they do not have keys to the other two houses, residents often choose not to lock their bedrooms. All bedrooms have a wash hand basin and standard bedroom furniture but no other individual facilities. There was evidence of multiple users sharing bathrooms from the range and amount of personal items that were kept in each bathroom. The residents of each house often purchase, prepare and take meals together and share food preparation and storage facilities communally. Family size cooking utensils and serving dishes were noted in the kitchens of all three houses, as were family size packs of food in the fridges and freezers of each house. The residents within each of the houses communally share all rooms and areas of the house (other than their own bedrooms) and the garden, and share the cleaning of the communal rooms and areas of the house. At the rear garden boundaries there is a two metre high panel timber fence between 83 and 85, and a brick wall of between one and two metres height between 85 and 87. There is one panel missing in the timber fence and a narrow gap in the one metre high length of wall. Complaints have been made that these gaps are used for common access across the rear of the properties by the residents of all three houses, but such use is denied by Mrs Martin. Residents in each house socialise together and often arrange social activities for themselves as a household group. ECHG also sometimes arranges social activities for each household in pursuit of the organisation’s wider objectives of promoting integrated communal living. Each house is separately rated and utilities are provided independently to each house as a whole; there are no individual utility supplies or individual metering for residents. There is one fixed telephone point in a communal area in each house for the use of all residents; no individual telephone points are provided in any of the bedrooms, although some residents do have their own personal mobile telephones. ECHG subsidises the cost of tenancy but each resident pays rent which forms a contribution to the overall running cost of their house. Residents vary in the length of time they stay, but the average length of stay for most residents is about six months, sosme stay for as long as a year while some will stay for shorter periods. (b) The nature of the relationship between residents (c) Whether residents live as a single household ECHG’s objective is to provide temporary affordable accommodation to young people who for whatever reason are homeless. All residents who come into the properties clearly share this common need for housing. They often have similar age, social and cultural backgrounds, and life problems and ambitions, and it is the view of Mrs Martin, who has contact with them on a daily basis, that their common life experiences and backgrounds are the basis of a relationship between them; and that this is the common thread which brings about a unifying relationship between the residents of each house. She refers, for example, to residents sometimes deciding to pool their income together to absorb temporary financial hardship to an individual, thereby giving some financial and social stability to all of the residents of a house as a whole. During my inspection there were clear indications of communal living in each house, all of which supported Mrs Martin’s explanation of how people generally lived in the houses – for example the sharing of costs, meals, cleaning, socialising, and the communal use of bathrooms, kitchens and house equipment. (d) Whether the use of the three houses can rightly be considered to be three separate units One bedroom (B2 on sketch plan of No.85 Broadway) is used purely for sleeping in by an overnight support worker. The support worker, both during the day and night, provides a means of support/care to all the residents of all three houses. One spare bedroom (B2 on sketch plan of No.83 Broadway) is used by ECHG for office purposes in respect of the three houses. Residents of all three houses pay their rent to the support worker on duty, usually at this office. The room, its contents, and level of use appear typical of many spare bedroom/offices found in dwelling houses; indeed such use of a bedroom in a dwelling is generally considered to be incidental to the use of the dwelling, rather than amounting to a material change of use. Mrs Martin stated that most of the administration in relation to ECHG’s running of the three houses (and other properties in Kettering) is now done at the ECHG’s central office on Station Road, Kettering, and that the function of the current office-use in the bedroom of 85 Broadway could easily cease without any impact on the residential use of the houses, save only that it would be more inconvenient for residents paying their rent. She emphasised the point that the bedroom always was and is available for immediate re-occupation as a habitable bedroom if the demand for accommodation made it necessary. I consider that the use of one bedroom for office purposes in this way is minor in nature and incidental to the use of the dwellings; both individually, and in the context of any two or all three of the houses if they were to be considered as single unit. In this case, notwithstanding the level of use as discussed above, it is also necessary to consider the existence and function of the office, and the provision of care across all three houses, in the context of whether they amount to, or contribute to, the formation of a single planning unit of any two, or all three houses and residents. In this regard it is clear that the function of the office serves all three properties [albeit in a minor way] therefore this must be balanced and weighed along with all other considerations in determining whether there has been a material change of use. In my opinion the office function and provision of care (in relation to all three properties) whilst material is not sufficient, by itself or in combination with any other factors, to establish that there has been the formation of a larger planning unit. There are many other factors relating to the use of the properties (summarised in this report and enclosed inspection notes) which when taken into consideration as a whole establish that the use of the three dwelling remain physically and functionally distinct from one another. (e) The Town and Country Planning (Use Classes) Order 1987 and Government Circular 13/87 In taking into account all of the considerations arising from the judgement of the Court of Appeal in respect of the implications for this case I note in particular that which their Lordships considered of ‘great importance’, at paragraph 26 of the judgement: ‘The very fact that class C3 is restricted – save in the case of “people living together as a family” – to households consisting of “not more than six resident” is in my judgement a consideration of great importance in determining whether the residents form a single household’. ”

[22]In the light of those considerations Mr Shields’s conclusion was expressed as follows:

“In consideration of the use of the three properties separately there are overwhelmingly far more factors which indicate their use as dwelling houses (falling within Class C3 of the Town and County Planning (Use Classes) Order 1987) than there are otherwise. With regard to the question of whether the houses can rightly be considered as separate dwellings (as opposed to a larger planning unit comprising of two or all three houses) I would conclude on balance that the evidence that they are single dwellings far outweighs any other factors which might indicate otherwise. The existence of an element of common care and ancillary office use in relation to all three houses, and the fact that physically they are adjoining terraced houses, whilst being material considerations, are not sufficient to establish that they exist and are used as a single unit. Far more persuasive that they exist and are used as separate dwellings are the very many other factors referred to in this report which, when taken into consideration as a whole, establish the shared communal living of residents in each house as a single household, taking place in each house separately both functionally and physically. I conclude therefore that the existing use of the three houses remain as individual dwelling houses each with use class C3 of the Town and Country Planning (Use Classes) Order 1987.”

[23]In a letter dated 22 October 2002 the council communicated to the claimant a decision in the terms of Mr Shields’s conclusion. That is the main decision now challenged.

[24]By letter dated 8 January 2003 the claimant (through a firm of solicitors, Hossacks, of which she is principal) sent to the council a witness statement of Miss A, a young woman who had been a resident of No. 85 in the course of 2002. In her witness statement she described No. 85 as dirty and smelly. Although cleaning rotas were put up by the management they were immediately ripped down and no one took any notice of them. There was no cooking rota nor any agreement whatsoever between residents as to cooking or shopping communally. Food left in the kitchen would be stolen, so the residents kept their food in fridges in their rooms. Despite restrictions on visiting each other’s houses, the residents would visit each of the houses on a daily basis, either ringing at the front door or going through the back gardens. The noise was so bad that she found it difficult to sleep. She was very worried about the fire risk. Complaining to the staff made no difference. All of the post was delivered to No. 83 and they had to collect it from a member of staff there. Heating for the three houses was controlled from the office at No. 83. No bills were shared between the residents. A standard amount, not dependent upon usage of utilities, was shown on their housing benefit forms. It was not true to say that the residents in each of the houses formed “family units”. She witnessed violence and drug-taking in the houses. She felt so unsafe that her boyfriend had to stay with her more than the three nights a week that were allowed.

[25]On 10 January 2003 the claimant sent the council a witness statement of Miss A’s boyfriend in which he confirmed various features of her account.

[26]In a letter dated 14 January 2003, described by the claimant as a decision and included as a subject of challenge, the council commented as follows on those two witness statements:

“As indicated in my letter of 9th January, I have discussed with Mr. Shields the content of this material. Briefly, it is not considered that anything said therein warrants the council revisiting the question of determination of the user of the premises in land-use planning terms; and, indeed, the testimony in the round is largely corroborative of the conclusions previously drawn and relied upon. For example, Miss A’s observations concerning the alleged cleanliness of the kitchen and bathroom areas are strongly indicative of a communal use of these facilities, notwithstanding that the way in which that use occurred might have fallen short of her own particular standards. Of course, a wide variety of conditions might be encountered across any given representative sample of ‘typical’ domestic households, and simple failure to achieve an arbitrary minimum standard does not make any one any the less such a household in planning terms. Similarly, the commentary concerning Miss A’s perceived isolation from her fellow residents is also generally confirmatory of the council’s assessment. The submitted testimony, whilst describing Miss A’s unfortunate experiences and highlighting certain behaviours that would be unacceptable in many households, does globally describe small groups of residents sharing a common, if marginal, lifestyle that is not considered to be inconsistent with a balanced conclusion that the individual properties are used and occupied separately in planning terms. Using the same ‘typical’ sample of households referred to above, an interested observer might reasonably expect to see any such member residents jointly or severally engaging in activities including associating with neighbours, visiting public houses in varying company from within or without the household, engaging in misbehaviour (even to the point of being antisocial), or arguing/fighting. Whilst undoubtedly unappealing, none of the negative behaviours described are considered to be of sufficient weight so as to indicate a change of use in respect of the premises in the context of the guidance handed down by the Court. Rather, the submitted evidence is considered to present a regrettable picture of the witness’ singular experience in failing to integrate with her fellows amongst one particular household; and, again, comparison against a ‘typical’ model might well reveal similarities with many traditional domestic arrangements where, say, young adult family members are starting to assert their independence or even in some degree of conflict with the remainder of the household. Turning to the issue of the refrigerators that are stated to be in certain bedrooms, Mr Shields has confirmed these were not evident to him at the time of his last two inspections although he is aware that residents are provided with a small portable refrigerator-box in the run-up to, and to assist, their moving on to independent living in their own accommodation. During his inspection of the premises in 1999, a few of these were seen in bedrooms and several more were seen stored together on a shelf. The then manager of the project (Mrs R Silk) explained at that time the purpose of these appliances, which were so small (perhaps only measuring 40x40x30cm) as to be capable of storing only a few items such as milk, canned drinks, or snacks. Certainly, the devices seen were not of a design or capacity to satisfactorily perform the function of keeping fresh the perishable provisions needed by an independent person to live on for a week or even a few days. Mr Shields recalls Mrs Silk further explaining that leaving residents often never bothered to take their refrigerator-box with them (clearly indicating their limited functionality) and those left behind would simply be stored and sometimes commandeered by newer residents, especially those occupying the upper floors most distant from the communal refrigerators and freezers in the main kitchens of each house for convenience. It is not considered that the use of such appliances by some residents indicates ‘separate occupancy’ any more than the use of one by our ‘typical’ family member for purposes of keeping milk fresh in a bedroom for, say, use with a morning ‘teasmade’ device. ”

[27]The council’s letter of 14 January 2003 also raised concerns about the circumstances in which the witness statements came to be written, including observations that they did not appear to be the witnesses’ own words and a threat to test the evidence by cross-examination in the event of it being relied on in legal proceedings. The council has not, however, thought it necessary to pursue that course.

[28]The claim form seeking permission to apply for judicial review was filed on 21 January 2003. It was accompanied by two further witness statements of the same date. One was a statement by the claimant herself, in which she referred to a number of further incidents of concern: a fire in an outbuilding at No. 87, threats of violence from young men from the houses, and further noise nuisance. She also stated that her own observation was that there was no evidence of “family groups” at the houses. She had not ever seen communal shopping being brought home. In addition she described being approached in January 2003 by former residents of the houses who had made statements because they shared her extreme anxiety about the care offered to them and others by ECHG: two, to which I have already referred, served prior to the commencement of proceedings and one, from a Miss B, served with the proceedings.

[29]Miss B had lived at No. 87 in the course of 2001 and at No. 83 in 2002. She stated that it was not true that they lived as a “happy family” in the houses. The houses were just places to store their possessions. They did not communally eat, shop or cook. No one took any notice of the cleaning rotas. Crockery would be left out unwashed. Food was stolen. She witnessed threats of violence, fights, and the use of drugs. Never did the residents form a “family” although individual friendships would develop across the three houses. Normally people would stay a few months until they moved out. There was not really a chance to form a family relationship.

[30]Prior to the hearing before me the claimant filed further witness statements, two of which (one in edited form) were relied on. One was a witness statement of Miss C, who lived at number 83 in the course of 2002. She too said that none of them cooked together or shopped for joint food. There was no cleaning rota. None of the joint events they were told about ever happened. Although a few house meals were arranged by her key worker, only two of the residents participated. She described a variety of drunken and violent behaviour, complained that items they were all supposed to be able to use had been stolen (the specifics mentioned being a video and a toaster), expressed concern about dirt and smells and fire hazards and referred to an absence of staff support. She repeated that they did not cook or shop together, did not have social outings, did not sit around together in the lounge, and were not allowed fridges in their rooms in No. 83 (though they were in Nos. 85 and 87), and that she had had food stolen.

[31]The other additional statement was a second witness statement of Miss A, who exhibited a number of photographs to illustrate the condition of the houses.

Submissions

[32]The case advanced by Miss Markham on behalf of the claimant is that the council failed to take adequate steps to obtain the information needed in order to make a proper determination. A reasonable decision-maker would not have decided the matter without making further inquiries than those made by Mr Shields.

[33]Miss Markham points to the fact that, in addition to reviewing the records to which he refers, Mr Shields spent only about 1¼ hours in the properties and interviewed only ECHG’s Mrs Martin while she accompanied him on that inspection. It is submitted that it was perverse not to interview(i) the claimant herself and other neighbours,

(ii) at least a cross-section of the residents of each of the properties, and

(iii) ECHG’s Midlands business manager, Mr Richardson. The need to conduct such further interviews was all the greater in light of the Court of Appeal’s comment (paragraph 28) that certain of the evidence put before it by the claimant and Mr Richardson respectively was not easy to reconcile and given the fact that one of the material considerations identified by the Court of Appeal was how intimate, integrated and cohesive the occupancy was. Although the claimant did not submit that the evidence presented to the council by Mrs Martin was unreliable, factually incorrect or designed by her to be partial, it had to be recognised that ECHG’s aspirations might be different from reality. It was only by meeting the residents that one could begin to understand the precise nature of the relationship between them.

[34]The further witness statements are relied on as pointing to the kind of thing that would have been discovered if further investigations had been carried out. It is said that they show the nature of the relationships between the residents and the way they conduct their lives. The picture presented is not that of a family group or of communal activities within each house, nor of the houses constituting single units distinct from one another.

[35]Miss Markham further submits that when Miss A’s witness statement was put to the council in January 2003, the council acted irrationally in refusing, by its letter of 14 January 2003, to reconsider its earlier decision and make further inquiries. The council questioned the contents of the statement and whether it was a fair summary of the position in the houses; but it could not reasonably rely on that as a ground for rejecting the statement without making further inquiries to see how representative it was. Further witness statements were then filed in the present proceedings in order to negative the council’s suggestion that Miss A’s experience was in some way unique.

[36]In the course of her submissions Miss Markham accepted that, if the council was entitled to proceed to a decision on the basis of the investigations actually made, i.e. if the complaint about the inadequacy of the investigation did not succeed, there was no separate challenge to the rationality of the decision reached on the information that the council had before it. To the extent that her additional skeleton argument challenged the balancing exercise carried out by the council, it was not pursued as a point separate from the need to investigate the matter properly before engaging in the balancing exercise.

[37]So too, although her additional skeleton argument raised the question whether Mr Shields approached the matter with an open mind, Miss Markham made clear that she did not intend to raise “closed mind” as a separate legal issue but was looking again at the sufficiency of the information obtained. She noted that Mr Shields had carried out the previous investigation on behalf of the council in November 2001, and that in that investigation he had interviewed two residents of the houses, whereas he carried out no such interview on this occasion.

[38]For the council, Mr Litton submits first that the council acted entirely reasonably in its investigation of the matter. The investigation carried out was more than enough to enable the council properly to decide whether the use of the houses fell within Class C3. Mr Shields inspected the houses themselves and had an extensive discussion with Mrs Martin, the senior supported housing officer. He was fully entitled to take into account what she told him, given her position within ECHG and her actual knowledge of the properties and their use. He also reviewed the extensive body of material on file. Moreover he had inspected the houses in the past when investigating complaints about them and was personally familiar with the issues.

[39]Mr Litton submits that the further witness statements get the claimant nowhere. The council considered the statements submitted to it in early January 2003 but concluded for the reasons set out in the letter of 14 January 2003 that they did not raise anything that warranted reconsidering the earlier decision. That was a view that the council was reasonably entitled to take. It was based on consideration of the contents of the statements and did not depend on a rejection of their truth. The council did not say that Miss A’s experience was unique, but that her experience, including her perceived isolation from fellow residents, was consistent with the council’s assessment of the position in the houses. It is to be noted that, as shown by the notes supporting Mr Shields’s memorandum of 18 September 2002, he was told by Mrs Martin that “each resident may play a more or less active participant role in communal living depending on individual personality…”. The overall picture painted, and accepted by the council, was not that of a “family group” but of a sufficient degree of communal living to fall within Class C3. In that connection Mr Litton also stresses that the claimant’s repeated references to a family and family group are misplaced: paragraph (a) of Class C3 is concerned with people living together “as a family”, but paragraph (b) relates to people living together “as a single household”.

[40]As to the later witness statements, Mr Litton submits that they do not raise any significant fresh material and cannot therefore help the claimant. There is nothing to suggest that if more residents had been interviewed the information would have been any different.

[41]So too Mr Litton submits that it has not been shown that neighbours could have said anything capable of making any difference. The claimant herself had been complaining for years and the council was fully conversant with her concerns. Nowhere in her evidence does she suggest that she had been inside the houses or was able to give any first-hand evidence of what went on inside the houses. She does not put forward any information that could have led to a different conclusion. The suggestion that other neighbours might have said something material is entirely speculative.

[42]So too the suggestion that ECHG’s Mr Richardson might have had other information capable of affecting the assessment is speculative. It was plainly sufficient to interview Mrs Martin, the officer with direct personal knowledge of the houses.

[43]Accordingly it was not irrational to proceed without carrying out further investigations: there was nothing in the evidence before the council that ought to have caused it to investigate further. In any event it has not been shown that such further investigations were capable of making any difference.

[44]I should record that, although ECHG was not represented at the hearing, this was on the basis of agreement reached between it and the claimant in the interests of saving costs. The terms of the agreement included the removal of certain witness statements from the bundle before the court (and I have made no reference to the statements so removed), the editing of one of the other statements (to which I have referred only in its edited form) and the observance of certain limitations on the submissions made on behalf of the claimant. Although ECHG played no part in the hearing, the court did have before it the evidence filed by ECHG, namely a witness statement by Mrs Martin (confirming what is said by Mr Shields about the information given to him by her) and a short witness statement of Mr Richardson. I have not thought it necessary to make more specific reference to that evidence.

Conclusions

[45]The rival submissions focus in the end on a very narrow issue. It is not in dispute that the council directed itself in accordance with the principles laid down in the judgment of the Court of Appeal. Nor is it in dispute that, if it was entitled to proceed to a decision on the material before it, it reached a rational decision on that material. The only issue is whether a reasonable decision-maker would have carried out a fuller investigation before proceeding to a decision; in particular, whether it was reasonable to proceed without interviewing neighbours, residents and Mr Richardson.

[46]Miss Markham cited Roberts v. Hopwood

[1925] AC 578

, but it seems to me that the way in which she put her case might more appropriately be based on the observation of Lord Diplock in Secretary of State for Education and Science v. Thameside Metropolitan Borough Council

[1977] AC 1014

at 1065B:

“… The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

The council as the decision-maker in this case asked itself the right question. The issue is whether it took reasonable steps to acquaint itself with the relevant information to enable it to answer that question.

[47]In my judgment the extent of the investigation carried out by Mr Shields on behalf of the council was indeed sufficient to enable the council reasonably to proceed to a decision. The exercise carried out was careful and detailed, encompassing a review of an extensive body of written material as well as an inspection of the houses and questioning of a senior ECHG officer with personal knowledge of conditions in the houses and the way in which they were occupied. The fact that the exercise was carried out by someone who himself inspected the houses previously and was personally familiar with the relevant history is a further factor in support of the adequacy of the investigation.

[48]I see no force in the contention that it was perverse to proceed to a decision without interviewing the claimant and other neighbours. Their concerns were well known and were no doubt reflected in the complaints that formed part of the records reviewed by Mr Shields. Nor could the neighbours be expected to have detailed knowledge of conditions within the houses or of the relationship between the residents, as opposed to knowledge about the effect of activities in the houses on neighbouring properties. It was therefore perfectly reasonable to proceed without interviewing the neighbours. None of the evidence adduced by the claimant in these proceedings causes me to doubt that proposition. On the contrary, such evidence supports the view that the neighbours would have had nothing of any significance to add.

[49]Equally there is plainly no substance in the contention that it was perverse to proceed without interviewing Mr Richardson. Mrs Martin had personal knowledge of conditions in the houses and was an appropriate ECHG officer to interview. The suggestion that Mr Richardson might have added something material is speculative and gains no support from what he says in his evidence in these proceedings.

[50]There is perhaps somewhat greater force in the submission that at least some of the residents of the houses should have been interviewed. That might have been a helpful course to adopt. In my judgment, however, it was reasonably open to the council not to adopt it. Mr Shields had the benefit not only of his own observations during his own inspection of the houses (and his previous inspections), but also of the information provided by Mrs Martin in response to his questions. He was entitled to rely on such information given by an ECHG officer, and in the event the accuracy of the information provided by her is not challenged. What she said was also consistent with Mr Shields’s admittedly brief conversation with two residents in the course of the previous inspection. Given the contentious background to the case there could have been advantages in filling out the information and getting an even better “feel” of conditions in the houses by talking to some of the current residents. But that is far from to say that it was perverse not to talk to them.

[51]Accordingly it was reasonably to proceed to the decision of 22 October 2002.

[52]The refusal to reconsider that decision following receipt of the first two additional witness statements in January 2003 was likewise reasonable. As I read the letter of 14 January 2003, the council approached the matter on the basis that, even if correct, Miss A’s evidence as supported by her boyfriend was consistent with the council’s assessment. The letter gave detailed reasons in support of that view and in my judgment the conclusion was a rational one.

[53]The further witness statements filed with the claim for judicial review and in the course of the judicial review proceedings are of doubtful admissibility but in any event do not contain anything to cause me to doubt the rationality of proceeding in the first place without obtaining such evidence. Indeed they do not add materially to the witness statements considered by the council in the letter of 14 January.

[54]I can well understand the claimant’s concerns about living next to the three houses and having to put up with the problems that the residents cause her. I also understand that, after the quashing of the council’s original decision and even after the Court of Appeal had laid down a less restrictive approach than that adopted by the judge at first instance, she must have had a strong hope that the fresh decision would be favourable to her and she must have been bitterly disappointed by the actual outcome. Some of her observations go to the merits of the decision rather than to its lawfulness. Some focus incorrectly on the question of family group rather than single household. But at the end of the day it was for the council to reach a decision; and once it is found that the council carried out a sufficient investigation, as in my judgment it did, it has to be accepted, and is indeed accepted, that the decision made was properly open to the council.

[55]Although it has been necessary to set out the background material and rival submissions at some length, I do not think that it will serve any useful purpose for me to elaborate my conclusions any further. For the reasons I have given, I take the view that the challenge to the council’s decision that the use of the three houses falls within Class C3 must fail. Accordingly the claim is dismissed.

Order

Appeal and the cross-appeal by Respondent’s Notice dismissed; the order of the judge is affirmed; the appellants to pay 90% of the costs of the respondents of the appeal, to be assessed and the appellant’s pay £6,207.12 held by the solicitors to the respondents’ solicitors on account; permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment) - - - - - - - - - - - - - - - MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in the judgment handed down, the claim for judicial review is dismissed. MR LITTON: My Lord, I have an application for costs, and, obviously, the claimant should pay the defendant's costs. I do not think that the principle of paying our costs is disputed. There has been some negotiation as to whether or not an agreed position can be reached, but that has not been possible. There are two summary assessments: a schedule of costs that were, I think, before your Lordship on the last hearing. Our costs have been revised downwards because they were based on a hearing estimate of a day and a half. MR JUSTICE RICHARDS: Do I need to look for those earlier summary assessments or is there a fresh copy now? MR LITTON: I have a copy of the original assessment. (handed) I think there are two areas where those expenses have come down. Under the heading "Attendance at hearing", the travel and waiting time has come down to reflect the fact that we were only here for one day, and not the two days. Similarly, in terms of my own fees, there is some refreshment. So the bottom line figure, if I can give you that, reflecting those amendments is now £17,605. I do understand that there is, as I say, disagreement with some of the items in relation to our costs, but perhaps you can hear from my learned friend on those items, and then I will respond? MR JUSTICE RICHARDS: Yes, certainly. MS MARKHAM: My Lord, I hope you still have a copy of the claimant's summary of costs. MR JUSTICE RICHARDS: I have not. (handed) MS MARKHAM: The first area that I am instructed to question is the attendances upon the opponent. MR JUSTICE RICHARDS: Yes, 15 hours. MS MARKHAM: It is 17.5 hours in total, if you look, 2.5 hours (inaudible). You will note that we have cited only 4 hours' attendance on our opponents. There appears to be a very large discrepancy there, and I would submit that is excessive and unreasonable, and does not appear to be borne out by the correspondence in the papers, particularly when the claimants cited only 4 hours. I would, therefore, invite your Lordship to reduce that time to 4 hours. In addition to that, there are 10 hours cited as time spent on the interested party. Again, we simply suggest that that may be an unreasonable amount of time, when you take into account the time that the claimant has spent in attendance on others, which includes witness statements prepared within the bundle, talking to other witnesses, and the interested party themselves. There was a great deal of negotiation between the claimants and the interested party before that resulted in a letter being prepared for court as to areas agreed between the interested party and the claimant, which resulted in the interested party not attending court. You will note that the defendant has cited 10 hours in attendance on interested party, and a further 10 on others. I am not certain as to whom those others refer. It appears to me, having looked through the bundles again last night, that there is very little in respect of other people. I have very little idea as to whom the defendant is referring. Therefore, I would submit that is an additional 10 hours, and we say excessive in the circumstances of this case. The next area is the 67.5 hours that have been cited as work spent on considering and preparing research and documentation. That is in addition to counsel's time spent on preparing research in the advice, skeleton and hearing brief that is further referred to. It appears to me wholly excessive and wholly unreasonable to expect the claimant, who prepared the bundle of the case, to have to find fees of 67.5 hours by the defendant, particularly when one recalls that this is a matter that has been before the court before. A vast amount of the one witness statement -- which had a very substantial exhibit to it, I accept that -- was already before the court in previous proceedings. The documentation was duplicated from the previous proceedings, and one simply asks the question, how long would it really have taken to get that information together, and would a senior solicitor have undertaken the photocopying of that? Is 67.5 hours a realistic and proper time to have expended on that? Further, I am instructed to ask the court to consider whether or not £2,500 as a brief fee for my learned friend for the hearing on 3rd July is an appropriate fee, particularly when this court rose at 12 o'clock. I take that no further. I feel somewhat in difficulty making submissions on that, but I was instructed to do so. I am not going to take that any further. I think that is all I need to say. It is a comparison between the claimant's figures and the defendant's figures. MR JUSTICE RICHARDS: Yes. Now some of items -- it is all very well raising doubts as to whether work was done, but without going through the documents in the way that a costs judge would do, I am not in a position really to resolve the matter. One can either adopt the rather robust approach of summary assessment, or one sends it off for detailed assessment. Are you inviting me, if in doubt, to send it off for a detailed assessment? MS MARKHAM: My Lord, if you are in doubt, I would ask you to do so. It seems to me they are wholly excessive when one looks at the bundle before the court. MR JUSTICE RICHARDS: Thank you. MR LITTON: My Lord, in so far as attendances on opponent, the figure that is given there, 17.5 hours in total, is the figure that I am instructed that my solicitors spent in dealing with Mrs Hossack. The fact that she only records 4 hours, in my submission, is neither here nor there. It could be because she under recorded as much as the suggestion that is being levied against us that we have over recorded. My Lord, you will be aware of the contentious nature of this litigation between the parties. In my submission, that figure of 17 hours in total is not in anyway unreasonable. The figure on the interested party plainly relates to the English Churches Housing Group. The figure on others, I have to confess, my Lord, I simply do not know. That is the 10 hours, being the last line under attendances. The major item, plainly, is the work on considering bail and research and documentation, at 65 hours plus the 2.5 hours at £160 per hour. I do not accept that the majority of paperwork that was put before this court in the form of Mr Shields' exhibit 2 was before the previous court. I was not at that court but I know, because I had a hand in advising on it, that this witness statement was put together for the purposes of this action. The exhibit itself, my Lord, is substantial. It has documents that are drawn from a number of different council files. It was necessary for counsel to go to those lengths to make sure that all the material was before the court, not least because Mr Shields in his memo refers to the fact that he had taken into account all the previous material. It would have been perhaps easier and less time consuming if we had simply put all the files before the court, but I do not suppose that the court for a moment would have welcomed that. What we have done is undertaken our duty responsibly in seeking to extract the relevant documents from the relevant files so that only that which is relevant is before the court. That was a time-consuming process. You will also recall that although the issue which ultimately became one that your Lordship had to decide was a very narrow one, the grounds identified in the claim form and, indeed, the skeleton argument went rather wider than that. The concessions that were given were concessions that were given in the hearing. Therefore, we had to prepare a defence on the basis of the claims that we thought we were having to meet, not the ones that were subsequently banned. So I do submit that work spent on considering and preparing research and documentation is not unreasonable. My brief fee -- your Lordship will have to take a view about that. I would ask you to record that this case was identified as one that was going to last a day and a half by my learned friend, presumably on the basis that that was what she thought the case would take, if she advanced all her grounds. As I say, in the event it was only half a day. I think that is actually the estimate that I gave. But that was because she abandoned progressively the number of her grounds so that it came down to the single ground that indeed could be dealt with shortly. MR JUSTICE RICHARDS: Thank you. I am going to order the claimant to pay the defendant's costs, but those costs will be subject to detailed assessment, if not agreed. The reason I adopt that course rather than trying to fix a sum by way of summary assessment is that certain of the figures on the defendant's schedule for time spent on various matters do appear to me, on the face of it, to be unreasonably high, especially when compared with corresponding items in the claimant's schedule. The overall figure for a case of this kind also seems to me to be, on the face of it, unreasonably high. It is not a case where I would expect the defendant's costs to be roughly double the claimant's costs, but I cannot resolve the issues of fact without a detailed examination of the work that it is claimed was done on this case, and it seems to me that that is best dealt with by way of a detailed assessment, if the parties cannot in the meantime agree on some lower figure that is claimed by the defendant. I would hope that if there is a detailed assessment, and if the figures put before me are found to be excessive, that will be taken into account in determining where the costs of a detailed assessment should lie. Thank you very much.