Barchester Healthcare Ltd v Secretary of State for Communities and Local Government & Ors [2010] EWHC 2784 (Admin)

Case No CO/15841/2009[2010] EWHC 2784 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 18 October 2010
The Strand
London
WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE McKENNA
(Sitting as a Judge of the Queen's Bench Division)
Between
BARCHESTER HEALTHCARE LIMITEDClaimant- v -
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantSEVENOAKS DISTRICT COUNCILDefendantTONBRIDGE & DISTRICT PROPERTIES LIMITEDInterested PartyD E SMITHInterested PartyC GRINLINGInterested PartyJ JUDGEInterested PartyMR & MRS COOKInterested PartyCOURT ROYAL DEVELOPMENTS LIMITEDInterested Party
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)
Mr Christiaan Zwart (instructed by Sarah Youren PlanningSolicitors, London N1 9UU) appeared for ClaimantMr Daniel Kolinsky (instructed by the Treasury Solicitor)appeared for First Defendant
J U D G M E N TMonday 18 October 2010THE JUDGE:
[1]This is the hearing of the claimant's claim under section 288 of the Town and Country Planning Act 1990 to quash the first defendant Inspector's decision dated 23 November 2009 in which he dismissed the claimant's appeal against the second defendant's refusal of planning permission for the erection of a two-storey building providing a 56 bed care home to provide 24 hour care, including accommodation for training staff and a general treatment room on land at the rear of Garden Cottages, Hollow Trees Drive, Leigh in Kent ("the development site"). The Inspector's decision (at page 4 and following in the appeal bundle) was made following an informal hearing on 13 October 2009 and an accompanied site visit the same day.[2]The issue in this case is whether the Inspector, Mr Dobson, erred in law by having regard to Policy H10A of the Sevenoaks District Local Plan in reaching the decision he did. It is the claimant's case that, by so doing, the Inspector took into account an irrelevant and/or immaterial consideration and/or failed properly to direct himself in law as to the interpretation of Policy 10A by attributing its criteria outside its ordinary scope to a development within Class C2 use when, argues the claimant, Policy 10A's only relevance is to a Class C3 use and/or the decision was irrational.[3]The development site presents as an unmanaged, small woodland with scrub vegetation bounded by a 1920's terrace, a post-war cul-de-sac and some playing fields. The land is not conspicuous or even readily visible from Powder Lane or from further afield. That appears from the relevant paragraph of the appeal decision.[4]On 13 October 2008 the claimant applied for planning permission to develop the land for the erection of a two-storey building proving a 56 bed care home to provide high quality, 24 hour care, including accommodation for training, staff and general treatment room. Access will be from Hollow Trees Drive, which will incorporate three passing bays and improvements to its junction with Powder Mill Lane, the provision of 22 car parking spaces, including three disabled bays and associated landscaping. It is common ground that this proposed development was within Use Class C2 -- residential institutions.[5]Relevant to this appeal are the published policies for development within the relevant district. These policies, saved by direction of the first defendant in July 2008 under the 2004 Planning Act transitional requirements included in particular the following:
"Housing for Special Needs The provision of residential accommodation must cater for a range of requirements to meet the needs of different sectors of the community such as the elderly and those with disabilities. This includes the requirements of people in special need of help or supervision, who may have special locational needs and for whom conventional housing may not be suitable. Provision of accommodation for people in need of care comprises a variety of nursing homes, group houses, hostels and sheltered housing. Most of these uses come within Class C2 of the Use Classes Order 1987. However the use of houses for occupation, by not more than six residents who may be receiving care, living together as a single household does not require planning permission. The Government's Care in the Community Programme favours the provision of small residential units within established residential areas, to cater for the increasing demands of people in special need. Locational factors, including access to local services and the supply of dwellings suitable for such use, particularly property conversions, tends to result in the concentration of special needs accommodation in particular areas. However the cumulative impact of several special needs homes can be detrimental to the amenities of an area and cause difficulties for other residents. Consequently, where planning permission is required the Local Planning Authority will have regard to the suitability of the premises and the impact of the use on the character and amenities of the locality. H8Proposals for residential care homes within Class C2 of the Town and Country Planning Use Classes order 1987 should comply with the following: 1)The land and/or buildings should be suitable for the purpose and off-street parking should be available; 2)The site should be well located near to local services including shops, health care and public transport; 3)The character of the neighbourhood should be appropriate. The Local Planning Authority will not permit the concentration of care homes in particular streets where the cumulative impact would harm the character and amenities of the area; 4)Proposals involving the conversion of existing buildings must not have a detrimental impact on the quiet enjoyment of adjoining residential properties. .... Housing Development Strategy Strategic policy recognises the important contribution which rural settlements make towards the overall provision of new housing in the County. Rural settlements, however, differ considerably in terms of their size, form and character, and hence in their capacity to accept new development. In recognition of this, the Kent Structure Plan suggests that three broad categories of rural settlement should be identified. Policy H3 of the Kent Structure Plan also requires housing opportunities to be used in the urban areas. (a)Settlements where residential development will be restricted to minor development, redevelopment or infilling (Policy RS2); (b)Settlements having potential within or adjoining their built confines for new residential development take account of the availability of appropriate services and infrastructure on the Structure Plan's policies for the countryside, Green Belt and the built environment, the location and quantity of any new development to be specified in the operative Local Plan (Policy RS3(a)); and (c)Settlements of such exceptional conservation or tourist importance that the primary planning policy towards all new residential development, including minor development or redevelopment, will be conservation and enhancement of the special character (Policy RS3(b)). Category A Settlements Policy RS2 of the Kent Structure Plan generally restricts residential development at villages and small rural towns to minor development, redevelopment or infilling. In this context, infilling is defined as the completion of an otherwise substantially built-up frontage, by the filling of a narrow gap capable of taking one or two dwellings, in suitable locations within their built confines. The scope for minor development or redevelopment depends on the particular circumstances of the proposal. However, proposals for five or more units on unallocated sites may be considered as beyond the scope of minor developments in most villages, therefore H10APursuant to Structure Plan Police RS2, within the confines of those villages listed below [Leigh is one such village] and defined on the Proposals Map, planning permission for residential development will be restricted to minor development (ie less than five units) or infilling (ie the completion of an otherwise built-up frontage capable of taking one or two dwellings only), except where the Local Plan has specifically identified a larger site intended to meet the requirements for the future growth of local households. Proposals for residential development must have regard to the existing visual character, spaciousness, architectural quality and rural setting of the area and achieve an appropriate standard of design and external appearance. Proposals to extend village confines, other than on sites specifically identified in the Local Plan, will not be permitted. ...."
It goes on to identify the villages, of which Leigh is one.[6]On 25 November 2008, the second defendant's officer's report summarised the proposal as:
"Erection of a two-storey building providing a 56 bed care home to prove 24 hour care with access from Hollow Trees Drive and associated junction improvements. Provision of 22 car parking spaces."
[7]The Planning Officer's report on the application is to be found at pages 47 and following in the bundle. Under the heading "Appraisal", at page 60, the following appears:
"Policy H10A of the Sevenoaks District Local Plan is also relevant to the site. The preamble to this policy explains that strategic policy recognises the important contribution which rural settlements make towards the overall provision of new housing. Rural settlements, however, differ considerably in terms of their size, form and character and hence their capacity to accept new development. They are therefore characterised (a), (b) and (c), with (a) having the least capability to accommodate new development. This is presumably because the villages are more isolated, less accessible, with less services available and hence less sustainable. .... Whilst I recognise that the present proposals do not seek a C3 (residential) use as before [a reference to an earlier unsuccessful planning application relating to a different proposed development] but a Class C2 one (residential institutions), and thus some of the policy implications of the present proposals are different to the previous scheme, the principle of directing development to the larger centres remains exactly the same. In my view, bearing in mind the relatively isolated location of the site in terms of overall scale, density and intensity of use, the present proposals would result in a substantial form of development far in excess of that envisaged by the policies outlined above. Indeed in light of the above I consider the development of the site along the lines proposed would only be acceptable if there were wholly exceptional circumstances to justify a departure from the above policies."
[8]On 19 December 2008, the local planning authority considered and refused the application, citing breach of H8 and H10A and also scale. The claimant appealed to the first defendant. On 13 October 2009 the first defendant heard the appeal by way of an informal hearing, including a site visit. In due course, the appeal decision dated 23 November 2009 was promulgated.[9]In paragraph 2 of his decision the Inspector, Mr Dobson, identified two main issues arising in his determination of the planning merits of the appeal, namely:(1) whether the proposal represents a sustainable form of development in accordance with the relevant development plan policies; and(2) its effect on the character and appearance of the site and its surroundings.[10]At paragraph 8, under the heading "The Proposal", the Inspector recorder that the proposal would be within Use Class C2 in these terms:
"The proposal is to clear the site of most of its trees and vegetation and build a 56 bed care home (within Use Class C2 -- residential institutions) in a single two-storey building with a main east/west access and two north/south wings. ...."
[11]At paragraphs 11 to 13, the Inspector addressed the applicable planning context. At paragraph 12 he noted as follows:
"The various policies from all these documents are identified and described in the main parties' hearing statements. There is no dispute that, following the national policy advice in PPS1 etc, they have sustainability at their core. At the hearing discussion was focused particularly on LP housing and settlement policies H8 (housing for special needs) and H10A (category A settlements)."
[12]At paragraph 15, the Inspector recorded the planning history of the site, including a refusal of planning permission for an assisted living retirement scheme for 18 flats and cottages, which clearly were within Use Class C3, not C2. He noted that the previous Inspector's judgment had been that this would undermine strategic and local policies aimed at concentrating development in urban areas and on previously developed land, and that the proposals were considered to amount to an unnecessary and unsustainable development in a rural area.[13]The key paragraphs of the decision are paragraphs 16 to 29, and in particular 18 to 20 where the issue of sustainability of the proposed development was addressed. The critical passage of the Inspector's decision for the purposes of this challenge are to be found in paragraphs 18 to 20, which are in these terms: "(i). Planning Policy: On the planning policy context, I note that Leigh is classified in the LP as a category A settlement, where, in terms of the plan's housing development strategy, 'residential development will be restricted to minor development, redevelopment or infilling'. Minor development is defined as comprising less than five units. The exception is where the specific local plan housing allocation has been made. No such allocation has been made in Leigh.[19]On the face of it, this policy would preclude the appeal proposal, unless, as the appellants maintain, this C2 use is not to be regarded as 'residential development'. On that basis, it is argued, LP policy H10A (and PPS3) is not relevant, and the proposal should only be assessed against the criteria in LP Policy H8.[20]I do not accept this argument. I agree with the Council that this proposal falls within any normal definition of 'residential development' as indicated by the description in the Use Classes Order of C2 uses as residential institutions. The fact that it is a specialised or special needs form of housing involving 24 hour care, and various in-house medical and other services and facilities, does not alter its fundamentally residential character, and therefore, its falling within the ambit of LP policy H10A. On this point, therefore, I find that, owing to the size and scale, the proposal would be contrary to development plan policy H10A." In summary, therefore, the Inspector considered that Policy H10A was relevant and that, due to its size and scale, the development would be contrary to the Policy.[14]At paragraph 21 the Inspector went on to consider Policy H8. I do not propose to deal with his conclusions in respect of that policy. Suffice it to say that there is a disagreement between the parties as to the exact conclusion the Inspector reached on that point.[15]I turn to the law. In this regard I am indebted to counsel for the claimant for his useful exposition of the relevant law both in his skeleton argument and indeed in his oral submissions this morning. The Town and Country Planning Act (as amended) makes provision for the development of land. Section 55 provides:
"(1). Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. .... (2). The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -- .... (f)in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class; ...."
[16]Pursuant to section 55(2)(f), the first defendant made the Town and Country Planning (Use Classes) Order 1987, paragraph 2 of which provides:
"In this Order, unless the context otherwise requires: 'care' means 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, and in Class C2 also included the personal care of children and medical care and treatment; ...."
Paragraph 3(1) provides:
"Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve the development of the land."
Part C provides as follows:
"Hotels 22. .... Residential Institutions Class C2. Use for the provision of residential accommodation and care to people in need of care (other that a use within Class C3 (dwelling houses)). Use as a hospital or nursing home. Use as a residential school, college or training centre."
There is a definition of "Secure residential institutions". Under the heading "Dwelling-houses" it is provided:
"Class C3. Use as a dwelling-house (whether or not as a sole or mail 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)."
Section 57 provides:
"(1). Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land."
Section 70 provides:
"(1). Where an application is made to a local planning authority for planning permission -- (a)subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b)they may refuse planning permission. (2). In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
[17]By section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision maker is required to determine the application in accordance with the statutory development plan unless material considerations indicate otherwise.[18]Section 78 of the 1990 Act provides:
"(1). Where a local planning authority -- (a)refuse an application for planning permission or grant it subject to conditions; .... the applicant may by notice appeal to the Secretary of State."
Section 79 provides:
"(1). On an appeal under section 78 the Secretary of State may -- (a)allow or dismiss the appeal, or (b)reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not), and may deal with the application as if it had been made to him in the first instance. .... (4). Subject to subsection (2), the provisions of sections 70, 72(1) and (5), 73 and 73A and Part I of Schedule 5 shall apply, with any necessary modifications, in relation to an appeal to the Secretary of State under section 78 as they apply in relation to an application for planning permission which falls to be determined by the local planning authority and a development order may apply, with or without modifications, to such an appeal any requirements imposed by a development order by virtue of section 65 or 71."
[19]By section 288 of the Planning Act 1990 (as amended), a claim may be made to the High Court where a party is aggrieved by the decision of the first defendant. The High Court has a discretion to quash the decision of an Inspector under section 288 if:(1) it is not within the powers of the Act; or(2) that any of the relevant requirements have not been complied with in relation to the decision and the claimant has been substantially prejudiced thereby. In effect, the court has a discretion to quash if there has been an error of law.[20]In addition to the statutory framework, I have been referred to a number of authorities. In Kent County Council v Secretary of State for the Environment (1977) 33 P&CR 70, the court considered whether permission may be granted for part of that for which planning permission had been sought. It was held at page 76:
"It seems to me that everything in Part III flows from and is consequential on the provision in section 23 that planning permission is required is required for the carrying out of any development of land; hence, when the matters come before the determining authority, in this case the first respondent, what that authority has to do is to decide whether, having regard to the provisions of the development plan and to any other material considerations -- that is, planning considerations -- permission ought to be granted, and, if so, what, if any, conditions should be imposed. It further seems to me that, as a matter of common sense, the determining authority can grant as much of the development applied for as they think should be permitted."
[21]In R (on the application of Tendring District council) v Secretary of State for Communities and Local Government [2008] EWHC 2122 (Admin), Sullivan J (as he then was) had to consider the meaning of Class C2. He held: "32. I have already indicated that the ordinary and natural meaning of a 'nursing home' may include an establishment that others would describe as a private hospital. It may also be equally apt to describe some nursing homes as residential care homes. While little nursing care might be provided in some conventional elderly persons' homes, there can be no doubt that the ordinary meaning of a 'nursing home' includes an establishment where 'nursing care' is provided.[33]If one then looks that the extended definition of 'care' in Article 2 to the order -- so that it incudes medical care and treatment in class C2 -- it is plain that residential care homes which provide medical care and treatment might equally well be described as nursing homes and vice versa. Somewhere that provides residential accommodation and care to people who are in need of care because of their old age is fairly described as 'old people's home'. And an 'old people's home' is, as the inspector noted in paragraph 7, what is commonly thought of as a nursing home. Certainly the appellant at the inquiry equated the two purposes. ....[37]I accept Mr Brown's submission that the appellant's own difficulties in classifying the use demonstrate only too clearly that there are no bright lines to be drawn between hospitals, nursing homes and residential care homes within class C2. Such establishments provide a spectrum of care, and the question is not could the present use of Yew Trees be described as a hospital or could the present use of Yew Trees be described as a residential care home? Rather it is, could it reasonably be described in ordinary language as a nursing home even though it might equally well be described as a hospital and/or as a residential care home? As I have indicated, there is no necessary contradiction between the three concepts. It is perfectly possible for the same use to be described either as a hospital or as a care home or as a nursing home or as a residential care home."[22]I was also referred to the judgment of Wolf J (as he then was) in Gransden & Co Limited v Secretary of State for the Environment (1986) 54 P&CR 361, to the speech of Lord Scarman in Regina v Barnet London Borough Council, ex parte Shah [1982] 2 AC 309, to the speech of Lord Browne-Wilkinson in Regina v Hull University Visitor, ex parte Page [1993] AC 682, and to the judgment (in particular paragraph 8) in R (on the application of Goodman v London Borough of Lewisham [2003] EWCA Civ 140.[23]The basis of the claimant's challenge to the Inspector's decision, therefore, relies on the Use Classes contained in the Town and Country Planning (Use Classes) Order 1987 which, as I have indicated, differentiates between Class C2 (a class which includes residential care homes) and C3 (use as a dwelling-house by a single person or people living together as a family or being not more than six residents living together as a single household). In this case it is argued that the claimant made no application for a Class 3 use. Consequently, on the authorities, it is said that the first defendant was not entitled to permit other than a Class C2 development, the use classes being mutually exclusive, and that Class C2 fundamentally concerns institutions which provide both accommodation and care. Section 38(6) of the 2004 Act recognised that the determination to be made in accordance with the provisions of the statutory development plan and the policy H8 criteria were drafted for changes of use to Class C2, whereas the statutory plan policy H10A had as its genesis the requirements for new housing; hence the term "residential development".[24]Since "residential development" within policy H10A assumes "dwelling" and makes no mention whatsoever of "institutions", and since Class C2 and C3 are mutually exclusive, the claimant argues that the compass of H10A "residential development" cannot within its ordinary and natural meaning extend to include a form of "development" within Class C2, which includes both accommodation and care. Thus it is said that the Inspector erred in law, firstly, because policy H10A was an immaterial consideration concerning "dwelling houses" and not "residential institutions"; secondly, by concluding that C2 use here was fundamentally residential in its character because such use required both accommodation and care and it was argued that if that was right, then hospitals would also be fundamentally residential; thirdly, by subverting the terms of Class C2; and fourthly, by stretching beyond breaking point the ordinary and natural meaning of H10A terms to be inclusive of a Class C2 use.[25]Finally, as to discretion, it is argued that it is evident from paragraph 28 of the decision letter that the Inspector accepted H8 compliance, but concluded that this did not override the more general planning policy imperative of locating new residential development in sustainable settlements and on previously developed land. Therefore, if policy H10A is taken out of the equation as being immaterial, it cannot be said that it would make no difference. Furthermore, the institutional nature of what was proposed was inherently different in terms of scale and size from dwellings, and therefore it could not be said that if the Inspector had started from the right place, as the claimant would argue, the same judgment or conclusions as to scale and size would be made.[26]To my mind, the starting point for consideration of the issue is a recognition of the underlying policy purpose of H10A, which addresses the appropriate location for residential development, reflecting the strategy of the Kent structure plan to allocate residential developments to sustainable locations and accordingly adopting a restrictive approach to such developments within villages such as Leigh, which are designated as category A settlements.[27]Whilst it is plainly right that the Use Classes Order distinguishes between Class C2 and Class C3 uses, and that a C2 use cannot also be a C3 use, it does not seem to me that that points in any way to being determinative of the meaning of residential development within policy H10A, which does not expressly limit itself to developments within Use Class 3. Indeed, it makes no reference whatsoever to any particular use class or indeed the Use Classes Order. It merely applies to "residential development" (however that should be defined). The decision of Sullivan J (as he then was) in Tendering District Council does not, as it seems to me, assist the claimant in this argument because that judgment does not address the relevant question for the purpose of this appeal, namely whether residential accommodation with care is incapable of being within the meaning of "residential development" for the purposes of policy H10A.[28]As it seems to me, the Inspector's approach, as is clear from paragraph 20 of the decision letter, was to give the term "residential development" its natural meaning rather than artificially to constrain that meaning by reference to the Use Classes Order, although it must be said that, as appears from the definition that I recited earlier, Class C2 makes express reference to the provision of "residential accommodation" (albeit with care also being provided). To my mind, the Inspector's approach is consistent with the ordinary and natural meaning of the word "residential". Perhaps more tellingly, it is consistent with achieving the purpose of planning policy that developments in which people live should be located in a sustainable location. The purpose of that policy applies just as much to the development of a residential care home as it does to the erection of a single dwelling-house.[29]By contrast -- and I accept the submission of counsel for the first defendant on this point -- the claimant's more restrictive approach would produce an answer which is not consistent with common sense in that it would render policy H10A inapplicable on the claimant's analysis to all residential uses outside C3. This would take outside the policy H10A not just residential care homes but also houses in multiple occupancy and some other forms of student accommodation, notwithstanding the fact that on any sensible analysis of such development they are forms of residential development in respect of which there will be the same or similar concerns so far as rural settlements are concerned.[30]In conclusion, therefore, in my judgment the Inspector's approach was plainly lawful. He was entitled to regard the words "residential development" as sufficiently wide to cover uses which fell outside Use Class C3. He was not obliged to find that a C2 use was incapable of being a residential use just because it was not within Class C3. In doing so, his approach is consistent both with the ordinary language of the policy and with the underlying planning objective of locating development in which people are to live in sustainable locations.[31]Accordingly, for all these reasons I would dismiss this appeal. MR KOLINSKY: I am grateful to my Lord. THE JUDGE: I presume you do not need me to deal with the discretion point in the circumstances? There is no point, is there? MR KOLINSKY: There is no point, my Lord. The only matter on my part is the question of costs. We would ask for a summary assessment. There is a schedule which may not have reached you. THE JUDGE: It certainly has not reached me. I do not know whether it has reached Mr Zwart yet? MR ZWART: My Lord, it has. We do not resist the application. We have looked at the summary schedule and it seems to us perfectly reasonable. MR KOLINSKY: I am most grateful. So the agreed figure, my Lord, is £4,256. THE JUDGE: So,(1) appeal dismissed;(2) appellant to pay the first defendant's costs of the appeal summarily assessed at £4,256, payable in? MR ZWART: My Lord, may we ask for 28 days? MR KOLINSKY: My Lord, no objection. THE JUDGE: Payable in 28 days. Thank you very much. MR ZWART: My Lord, I am required to ask for permission. As you will be aware, this is part of the CPR process. We would respectfully submit that, although you have found against me on essentially a Wednesbury question, that this raises a matter of public interest (inaudible) C2 and the extent to which the statutory term "material consideration" can extend into the terms of the Use Class Order absent those white lines and its consequential effect, and therefore, we would respectfully ask for permission to appeal. THE JUDGE: My inclination is to suggest that if the Court of Appeal thinks that it is a matter which they think should be investigated, then they will give you permission, but I will not. MR ZWART: I am obliged. THE JUDGE: Thank you very much.