Tendring District Council, R (on the application of) v Secretary of State for Communities & Local Government

Under the Town and Country Planning Act 1990 and the Town & Country Planning (Use Classes) Order 1987, the purposes grouped within use class C2 are not watertight compartments. Hospitals, nursing homes and residential care homes may overlap and may describe the same use. The question is whether the use can fairly be described in ordinary language as a nursing home, even though it could also be described as a hospital or residential care home. The relevant use is the primary use of the land, including activities ancillary or incidental to it. A planning condition restricting premises to a nursing home does not necessarily exclude every other C2 description. The inspector had reasonably concluded that a secure facility principally providing care to persons with mental disorders remained a nursing home for planning purposes.

Tendring District Council issued an enforcement notice alleging that Yew Trees, formerly operated as a nursing home for elderly people, was being used as a secure institution providing residential accommodation, care and medical or psychiatric treatment. An inspector allowed the statutory appeals on ground (b), concluding that the use remained a nursing home within the 1988 planning permission and that no breach of condition had occurred.

The Council challenged the inspector’s decision under section 289 of the Town and Country Planning Act 1990, alleging an error of law and an unreasonable conclusion. The central issue was whether the present use could reasonably be described as a nursing home, or instead had to be treated as a hospital, residential care home, secure hospital or sui generis use.

The appeal was dismissed. The inspector had neither erred in law nor reached a conclusion which was unreasonable. The claimant was ordered to pay the Secretary of State’s agreed costs of £8,004.

1. Use class C2. Section 55(2)(f) of the Town and Country Planning Act 1990 and article 3 of the Town & Country Planning (Use Classes) Order 1987 group together uses with sufficiently similar planning characteristics. A change between purposes within the same class is deemed not to involve development. It is therefore unnecessary to place a particular use into only one C2 category.
2. Overlap between descriptions. Hospitals, nursing homes and residential care homes form a spectrum of care. The same establishment may reasonably be described by more than one of those expressions. The extended definition of care in article 2, including medical care and treatment, reinforced that conclusion.
3. Meaning of nursing home. “Nursing home” was not defined in the Act or the Order and was to be given its ordinary and natural meaning. The court declined to import the definition in the Registered Homes Act 1984, because that Act served a different regulatory purpose. Its distinction between nursing homes and mental nursing homes did not require a corresponding distinction for planning purposes.
4. Application to Yew Trees. The inspector was entitled to find that the principal activity was personal care for people requiring care because of past or present mental disorder. Strict security arrangements were subsidiary and did not transform the use into a secure hospital under class C2A. The use could fairly be described as a nursing home, notwithstanding its hospital or residential-care characteristics.
5. The decision in Tessier v Secretary of State for the Environment and Another was distinguishable. The present use was not an unusual activity being forced into the Order’s categories.

The judgment records no prior court decision in the same litigation. The challenge was brought directly under section 289 of the Town and Country Planning Act 1990 against the inspector’s decision letter dated 20 November 2006.