Home > News > High Court considers whether extra care development is excluded from affordable housing requirement because units are not “dwellings”

The High Court has dismissed a claim which argued that where a Local Plan had referred to “dwellings” in the context of affordable housing, the policy applied only to C3 dwellings, thus excluding accommodation and care provided to people in need of care pursuant to a C2 use. The judgment has implications for those dealing with planning applications for residential care settings, and provides wider guidance on the use of background documents when interpreting planning policy.  

An appeal to the High Court was made by the developer, who argued that the affordable housing policies in the South Oxfordshire Core Strategy did not apply to a development of residential care setting, which was agreed by all parties to be C2 use. The relevant policy, Policy CSH3, set out: 

“40% affordable housing will be sought on all sites where there is a net gain of three or more dwellings subject to the viability of provision on each site. 

It was argued that “dwellings” was a reference to “C3 dwelling”. This was significant because, in accordance of the definition of C2 and C3 use classes, there cannot be C2 use where there are C3 dwellings: 

  1. Use class ‘C3 Dwellinghouses’ is defined, as relevant, as “Use as a dwellinghouse (whether or not as a sole or main residence) by (a) a single person or by people to be regarded as forming a single household; (b) not more than six residents living together as a single household where care is provided for residents; or (c) not more than six residents living together as a single household where no care is provided to residents (other than a use within class C4). 
  2. Use class ‘C2 Residential institutions’ is defined as “Use for the provision of residential accommodation and care to people in need of care (other than a use within class C3 (dwelling houses)). 

Mr Justice Holgate concluded that the reference to “dwellings” in Policy CSH3 did not refer to C3 dwellinghouses. First, the policy made no reference to the Use Classes Order. Second, there was no need for the term “dwellings” to refer to separate planning units. Third, in the plan more generally, “dwelling”, “house”, “unit” and “home” are used interchangeably with no technical or restrictive meanings. Fourth, something may be a “dwelling” in law (pursuant to Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P & CR 142) but not be in C3 use, for example a house in multiple occupation. 

The Claimant had cited a document referred to in the Core Strategy titled ‘Affordable Housing Viability Study’ which it said supported its interpretation. However, the Court did not accept that document as an aid to interpretation because the plan should generally be understood from its own text, and in addition the document involved testing only at a generic level. Mr Justice Holgate gave further guidance on the use of background documents when interpreting planning policy. 

The Court also dismissed the Claimant’s other grounds of challenge, which related to departure from a previous Inspector’s decision and weight given to a planning benefits. 

A copy of the judgment is available here. 

Rupert Warren QC and Matthew Fraser appeared for the Claimant, instructed by Eversheds Sutherland. 

Leon Glenister appeared for the Secretary of State, instructed by the Government Legal Department.  

icon-accordion-chevron icon-arrow-left icon-arrow-right icon-chevron-down icon-chevron-left icon-cross icon-download icon-letter icon-linked-in icon-phone-outline icon-phone icon-search icon-search icon-select-chevron icon-top-right-corner icon-twitter