North Devon District Council v First Secretary of State

Under the Use Classes Order 1987, a small children’s home falls within Class C3 only where the children and at least one carer reside together as a properly functioning household. Non-resident carers providing continuous care do not satisfy the requirement that residents live together as a single household. The use therefore falls within Class C2, regardless of the number of children accommodated. Nevertheless, classification within Class C2 does not automatically establish a material change of use. Materiality remains a question of fact and degree in the individual case. An inspector’s reasons need not be elaborate where it is clear that the relevant matters were considered and the conclusion was legally open.

Southern Childcare Limited operated a three-bedroom house as a registered children’s home for two children placed by local authorities. Two non-resident staff were on duty continuously through shifts, with wider supervision by a team of carers.

The Council refused an application for a certificate of lawful use under section 191 of the Planning Act. An inspector allowed the appeal, deciding that the use was within Class C3(b) as a dwellinghouse occupied by not more than six residents living together as a single household, with care provided by non-resident staff. The Council appealed to the Administrative Court.

The issues were whether the use fell within Class C2 or C3, and, if it fell within Class C2, whether there had nevertheless been a material change of use.

1. Classification under the Use Classes Order. The use of the premises for residential accommodation and care of children prima facie fell within Class C2. It could fall within Class C3(b) only if the residents lived together as a single household.
2. “Household” required more than the physical presence of the children. The children required full-time adult care and could not, as a matter of principle, run the house or perform the functions necessary for a properly functioning household. In this context, at least one carer had to reside at the premises with the children.
3. Non-resident carers attending on a rota, even where they supplied continuous 24-hour care, could not be treated as living together with the children. The contrary approach in R v Bromley London Borough Council ex parte Sinclair [1991] 3 PLR 60 was not accepted.
4. The size of the children’s home did not determine whether it fell within Class C2. If the use was residential accommodation and care within C2, the number of children did not convert it into a dwellinghouse. The Council’s appeal therefore succeeded on the classification issue.
5. Classification within C2 did not automatically mean that planning permission was required. Whether there had been a material change of use remained a question of fact and degree. The inspector had considered the parties’ submissions, representations, the site and its surroundings. His conclusion that the change was not material was legally open to him, despite the brevity and imperfect wording of his reasons.
6. The use of the premises for up to two children, with care provided by up to two non-resident staff, was lawful on the particular facts. The appeal was dismissed. There was no order as to costs.

The Council appealed to the Administrative Court against an inspector’s decision dated 5 August 2002 allowing an appeal against refusal of a certificate of lawful use. The Administrative Court dismissed the Council’s appeal.