C3 or C2?

An appeal case concerning the occupation of a bungalow in Nottinghamshire by five adults with learning difficulties and mental health issues throws light on the distinction between C3 and C2 Use Classes (DCS Number 200-004-885).

The council had served an enforcement notice alleging the unauthorised change of use of the property from a dwellinghouse (C3) to a residential care home (C2). Meanwhile, the appellant sought a certificate of lawfulness, claiming that the existing use was for five residents living together as a single household and receiving care as permitted by C3(b). The inspector found that the enforcement notice had been issued without the proper authority and therefore declared it a nullity. Turning to consideration of the LDC appeal, however, he recorded that Class C3(b) is defined as the use as a dwellinghouse by not more than six residents living together as a single household where care is provided for residents. He reasoned that the fundamental question was whether the residents of the property formed a single household.

The inspector referred to North Devon District Council v First Secretary of State [2003] in which it was held that children were not capable of forming a single household in the absence of a live-in carer on the basis that children are not generally capable of running a household themselves. In the North Devon case the judge remarked that the same would apply to adults who suffer from mental or physical disability who need care in the community. However, that judgment was considered in detail in R (on the application of Crawley Borough Council) v FSS and Eve Helberg (Trading as the Evesleigh Group). In reaching his judgment on ‘Eve Helberg’ the judge remarked that he would be reluctant to read the comments of the judge in the North Devon case as laying down a principle that those who suffer from disability or are in need of care can never constitute a household. He concluded that the correct position is that a judgement needs to be made based upon the facts of each individual case having regard to the nature of the disability suffered and the degree of care required.

The inspector saw that the layout of the property was largely what one would expect of any family home, with a communal lounge, kitchen and garden area. Locks were provided on bedroom doors to provide privacy and security but he held that that, of itself, did not dictate that the residents did not form a single household, having regard to the prevailing sense of communal living. In proportion to the scale of the building as a whole he considered that the manager’s office was small and not unexpected in a home where care was provided. There was nothing inherent within the layout of the property that would suggest that the use would fall outside Use Class C3(b), the inspector determined. In addition, he recorded that the residents had formed friendship bonds. The communal living arrangements and the way in which household tasks were undertaken indicated to him that they were living as a single household, and care was provided on a shift basis such that none of the care workers were resident at the property. He noted that there had been incidents of noise and antisocial behaviour but reasoned that it is inherent within the terms of the Use Classes Order that those with mental disorders may fall within Class C3(b). Whilst acknowledging that the behaviour of residents might seem unusual or intimidating to neighbours, the incidents recorded by the police did not indicate that the residents were incapable of forming a household for the purposes of Class C3(b). A certificate of lawfulness was issued on the basis that the property was in use as a dwellinghouse as defined by Class C3(b) of the Town and Country Planning (Use Classes) Order 1987 (as amended) and no material change of use had taken place from the previous lawful use within Class C3(a) of that Order.

It seemed to the inspector that the purpose of the carers was largely to assist the residents in day-to-day tasks as opposed to undertaking those tasks themselves on behalf of the residents, described as ‘supported living’ by the appellant. This might be a useful test to apply to cases elsewhere when the relevant Use Class needs to be determined.

The following DCP chapter is relevant: 4.333

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