The question of which use class applies to a care-home for the elderly or others in need of care has been addressed once more in a recent Cornish appeal decision, in which dwellings for over-55s were classified as C3 rather than C2, despite being intended for occupiers needing a minimum of two hours of care per week. This is subtly distinguished on its facts from a case in Devon last year, and highlights the need for national planning policy to classify care-homes as either a flexible C3-C2 use, or within a use class of its own.
Residential homes for the elderly or other people requiring care have been classified as either Class C2 (residential institutions) or Class C3 (residential dwellings) under the Town and Country Planning (Use Classes Order) 1987 ("the UCO"). The former is defined in the UCO as accommodation for those in need of care, and which is not Class C3 residential dwelling. "Care" is defined in the UCO as personal care required by reason of a person's age, disability, past or present dependence on alcohol or drugs, past or present mental disorder, and includes the care of children, and the giving of medical care and treatment.
Implications for viability
Some local authorities may treat Class C2 developments more leniently in terms of whether or not affordable housing is required, and the scale of affordable housing. CIL applies to care-home developments in the same as as for other developments, but may have a greater effect on viability than for non-specialised residential schemes. One of the arguments that developers can put forward is that there is a premium on the cost of the construction and fitting out of care-home developments over and above that of standard C3 dwelling houses. Whilst this may contribute to an argument against the need to provide affordable housing connected with the development, it may not prevent a form of clawback favoured by current policy if the profitability of the development exceeds a certain threshold, above which it would be reasonable to require some contribution towards local affordable housing.
Implications for developers
Developers interested in the provision of care homes or extra-care facilities for the growing population of elderly, as well as to meet other needs, will need to consider carefully how the care is presented and structured. A communal residential care home element within a wider development scheme could be classed as C2 where care is provided to residents within the home, but any independent flats or dwelling units in which occupiers can take advantage of facilities on site but may not be in need of much actual care themselves could be classed as C3.
Devon vs Cornwall
The distinction between Class C2 and C3 can have significant planning and development implications, so clarification of the distinction has periodically reappeared in the courts or in the form of appeals considered by the Planning Inspectorate. The distinction is based on the nature of the care provided in connection with the accommodation, rather than the classification of the occupiers as elderly or disabled in some way. The nature of "care" is a question of fact. In a recent appeal decision (APP/D0840/W/18/3199163 dated 11 February 2019) in respect of land south of Cross Lanes, Lanstephen, Launceston, Cornwall] the heart of the dispute was the C2/C3 classification of 30 bungalows intended for over 55's, with warden's office and accommodation, and a range of community facilities including recreation space, lounge, hairdresser. Onsite support for laundry, disability equipment, cooking and personal care were also proposed. The inspector, Rory Cridland, decided that most of the facilities were not forms of personal care as envisaged by the UCO, but services arranged at times to suit the individuals, and not distinguishable from the support provided to individuals living in C3 accommodation, including their own homes. The other communal facilities (lounge etc) bore similarities to the kind of shared facilities for non-specialist accommodation in gated developments or apartment blocks, rather than facilities specifically required to provide the care of elderly residents. Cridland concluded that it was unclear what the nature of personal care to be provided was and what would happen if the care needed fell below 2 hours a week. Therefore, he decided that these units were class C3 which meant that the planning policies relevant to dwelling houses should apply to the development.
This decision contrasts with that of an appeal brought by PegasusLife (APP/U1105/W/17/3177340 dated 22 January 2018) in relation to an assisted living community with 113 self-contained units, staff accommodation and ancillary facilities in Sidmouth, Devon. Classification as C3 would attract an affordable housing contribution. The Inspector, Michael Boniface, decided that although the units were self-contained, they were accessed from communal spaces and benefitted from a wide range of communal facilities, such as a hydrotherapy pool and physiotherapy and specialised features and adaptations for disabled/elderly living. There would be a care manager based on site and accommodation for carers as and when they needed to stay on site. The communal facilities were open to the public, which was seen as positive integration of the residents into the community. Interestingly, Boniface refers to the transition from a minimum of two hours care per week which might increase as individuals got older and their needs increased, but he also acknowledged that this would not necessarily apply to all residents. It is this two hours' minimum care need which Cridland cites in the Cornwall appeal as being insufficient for a Class C2 classification.
National planning policy recognises the importance of providing suitable accommodation for a growing elderly population. Not only does this reflect the importance of this sector of the population and the particular associated health-care needs, but also offers a means to inject some movement into the housing market in that if elderly people have a choice of interesting and attractive independent living opportunities, then moving into "care" in its broadest sense might be a more attractive proposition thus releasing some family homes into the housing market.
The question remains whether national planning policy will countenance the creation of a specific use class for retirement living, irrespective of the degree of care provided. This could be a solution to the problems of classification where flexibility in the provision of care is offered; for example, in some settings residents require little care when they first move into the accommodation (undoubtedly a C3 use) but, as their care needs increase, that care is provided within the wider development without the individuals having to move (a class C2 use). This might be addressed either by permitting a flexible C3-C2 transitioning use, or by creating a sui generis use class for care-homes.
Until then, developers are strongly advised to carefully consider the nature and extent of the provision of care and facilities in their new developments for elderly accommodation, particularly where they seek to benefit from a Class C2 classification for other planning reasons. Applications should also be considered in the light of local need for both care-home provision but also affordable housing requirements, against which the local planning authority would weigh their decision, and which might give rise to the authority arguing for a C3 classification in order to be assured of affordable housing provision.