COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Lightman)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE ROBERT WALKER
LORD JUSTICE CLARKE
| THE QUEEN (on the application of YVONNE HOSSACK)||Claimant/|
|- and -|
|KETTERING BOROUGH COUNCIL & ANOTHER||Defendant/|
|- and -|
|ENGLISH CHURCHES HOUSING GROUP||Interested Party|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Head of Legal Services, Kettering Borough Council) for the Appellant
Ms Hannah Markham
(instructed by Messrs Wood Shaw & Co) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
“Use as a dwelling house (whether or not as a sole or main residence) -
(a) by a single person or by people living together as a family, or
(b) by not more than six residents living together as a single household (including a household where care is provided for residents).”
“Care” is defined by article 2 of the 1987 Order to mean “personal care for people in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder …”.
“83, 85 and 87 Broadway, Kettering
I write with regard to the above properties and in response to recent correspondence concerning the same.
I inspected the above properties on Thursday 8 September 1999 and discussed the use and operation of them with the project worker Mrs R Silk. During our discussion Mrs Silk responded to a number of my enquiries as below:
1. 83, 85 and 87 Broadway have at any time no more than five residents in each property, but 83 also has a room used for overnight occupation for a resident support worker.
2. There is not (and never has been) an internal access between 83 and 85 Broadway.
3. 85 and 87 Broadway share an internal access door on the first floor, this is kept permanently locked and only ever used by Mrs Silk or another member of staff. It is not available for the use of residents.
4 All bedrooms have locks on the bedroom doors but not all residents choose to use them.
5. All bedrooms have a wash hand basin for the use of each occupant, but no other individual facilities.
6. The residents (within each house) share communally all cooking, dining, food preparation and food storage facilities. There are no individual fridge/food storage facilities.
7. The residents (within each house) share communally the lounge and bathroom facilities and the use of the garden area of each house.
8. The residents (within each house) share communally the cleaning responsibilities and often cook ‘house meals’ for the other residents sharing the costs of jointly purchased food.
9. Social activities are arranged for (and often by) the residents of each house for the benefit of each household group. Mrs Silk stressed the point that it was an aim of ECHG to promote and encourage integrated communal living and shared responsibility wherever possible. Although the project is financially supported residents have to contribute towards the running costs of ‘their’ house. There are no separate supplies of services (electricity, gas, water, etc) or associated individual billing.
10. Residents in each house are given an external door key to their own respective house only - not to the other two houses.
During my inspection of the three properties I did not find anything which contradicted Mrs Silk’s explanation of the way in which the properties were occupied. In each house all the lounge, dining, bathroom, kitchen and food storage and preparation facilities appeared to be shared as described by Mrs Silk. I saw residents’ cleaning rosters pinned to the walls in 85 and 87 Broadway.
In essence the only physically discernible difference I found between any of these three properties and that of any average family-occupied house was that there were locks fitted to each of the bedroom doors. There are no physical alterations to the exterior of the houses and appear in the street scene as three typical terraced properties. Access right across the rear of the three properties is available primarily due to fencing panels having been removed or damaged.
Mrs Silk acknowledged that there were occasional problems with difficult residents but if they were considered unmanageable those residents would be referred to a more appropriate organisation. She went on to say that most of the problems of noise disturbance to local residents was in fact caused by people (largely uninvited) visiting the houses, and in this respect she anticipated that the deployment of CCTV cameras would do much to reduce such disturbance to a minimum.
There has been no material change of use of the three properties at 83, 85 and 87 Broadway, Kettering, and they remain individually within the C3 use class as described in the Town and Country Planning (Use Classes Order) 1987:
‘Use as a dwelling house (whether or not as a sole or main residence) … by not more than six residents living together as a single household (including a household where care is provided for residents).’”
“I do not find any of these references particularly helpful except to make clear to me what I would have supposed in any case that both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive.”
“At the other end of the spectrum one can imagine a typical rooming house, perhaps a sizeable house with a large number of different households sharing limited facilities, such as bathrooms and lavatories, but with separate establishments as between one flat and another, with their own front doors and perhaps a high degree of anonymity as between the various occupants. … Other cases, of course, will fall somewhere between the ends of that spectrum, and the question that has to be answered on the facts of any given case is whether it falls within the family kind of picture or within the typical pattern of a house in multiple occupation. … [Counsel] has suggested a number of factors. I would for my part wish to make clear that the order of these factors should not be regarded as significant and that the weight to be given to any particular factor will vary widely from case to case depending on the overall picture. It would in my judgment be wrong to do what Lord Hailsham rightly said could not be done and suggest that there was a litmus test which could be applied to determine whether a house was being occupied as a single household or not.”
i) the origin of the tenancy; whether the residents arrived in a single group or were independently recruited by the landlord;
ii) the extent to which the facilities were shared;
iii) whether the occupants were responsible for the whole house (including the common parts) or just their particular rooms;
iv) the extent to which the residents can and do lock their doors;
v) the responsibility for filling vacancies: whether that of the existing occupants or the landlord;
vi) the allocation of rooms: whether by the occupants or the landlord;
vii) the size of the establishment;
viii) the stability of the group;
ix) the mode of living: to what extent communal and to what extent independent.
“While acknowledging the dangers inherent in seeking further to define the indefinable, I readily agree that some further attempt at clarification is desirable.
In a case, such as the present, where it is plain that the property is a ‘house’, the determinative word in the definition is ‘household’. Where a house is occupied by more than one person I do not think that the occupants can be said to form a single household unless there is between them a relationship which provides a particular reason for their living in the same house. Obvious examples of such relationship are family, employment and long-standing friendship. …
The difficulty comes when there is no such relationship as those already mentioned.”
“That reasoning in relation to those facts leads me to believe that if a good working test is to be deduced from that decision it should be this. Where a small group of students at the same university join together to occupy a house or flat for the period of an academic year they will usually form a single household, notwithstanding that they may not all have known each other beforehand and that they may pay rent individually for their occupation. Their reason for living together may be taken to be a sharing in the comradeship, no less than the expenses, of university life. There is from the start a sufficient relationship between them for them to form a single household.”
“… the vital distinction between [Barnes] and the present case is that the young people in Barnes came to the house and left the house as a single homogenous [sic] group, and could readily be identified as such. Of course, it does not follow that a number of persons living in the same house who do not come and go as a separate group are not a single household, but it will, in my judgment, be more difficult in such a case to conclude that they do form a single household, although obviously, their mode of living in the house may lead to that conclusion.”
Mummery LJ merely agreed that the appeal should be allowed.
The judgment below
“12. In deciding whether the use in this case of each of the Properties is by the residents living together as a ‘single household’ for the purposes of the 1987 Order, it is critical to examine whether (in the language of Nourse LJ) there is such relationship between the residents as provides a particular reason for their living in the same house. In my view there is lacking such relationship in the case of the residents of the Properties. They do not come as a preformed group, let alone for a predetermined period. They are a constantly shifting body of persons, each coming and going at the will of the licensor ECHG and residing for indefinite and necessarily dissimilar periods. ECHG has total management control; has the run of the Properties (save for the residents’ rooms); and uses each and any part of the Properties as it chooses for its own purposes, which includes administration and accommodating staff. Each resident has exclusive occupation of, and the key to, his own room; each pays his own ‘rent’; it is for each to provide for himself, though common cooking and leisure facilities are available. The common bond is not any relationship (pre-existing or otherwise) between themselves, but a common need for accommodation, support and resettlement. That common need is their shared characteristic and the qualification for selection as residents; it does not reflect or arise from any relationship between them. I have fully in mind that there are in this case aspects of a communal life (eg sharing the cleaning of the common parts) and that it was the aim of ECHG to promote and encourage integrated communal living and shared responsibility. But these considerations no more afford the use the character of a single household than the similar considerations in Rogers -v- Islington LBC supra. The conclusion which I have reached totally accords with any common-sense appreciation of the character of the use of the Properties. The Properties are in multiple occupation. Each resident occupies his own bedroom though enjoying common facilities and each lives his own separate life though the sharing of aspects of life is encouraged. There is no single household: there are as many households as there are residents. In addition there is occupation for the purpose of its business or activities by ECHG.
13. The use of each of the Properties has all the characteristics of a hostel, ie buildings providing relatively short stay and inexpensive sleeping accommodation and shared communal facilities eg for cooking and recreation. In my view, viewed in isolation the use of none of the Properties could reasonably be viewed by the Council as use by the residents living together as a single household. Going beyond this the only realistic and legally tenable view must be that there is use of the Properties together as one single entity. This is reflected in the staffing and administration of the Properties together (centred on a room in No 83), the unity of the gardens, the internal access door between Nos 85 and 87 and the interchangeability of the use of rooms in No 83 and No 85 for overnight accommodation for staff. It is totally unreal to look at each Property in isolation as separate and distinct units. Looking at the use of the Properties together as a single entity reinforces the conclusion on the facts established in this case that there cannot reasonably have been held to be a single household.
14. I therefore conclude that there has been a material change in the use of the Properties from that falling within Class C3 to use as hostel (a use falling within article 3(6)(i) of the 1987 Order) and accordingly a use for which planning permission is required but has not been obtained.
15. In reaching the decision which I have, I have paid full regard to the helpful and forceful submissions of Counsel for the Council, and in particular the submission that, to grant the relief sought in this case, I must not merely hold that the decision of the Council was wrong (as the Court of Appeal held the decision of the recorder was wrong in Rogers -v- Islington LBC); I must conclude it was a decision which the Council could not reasonably reach, properly directed as to law. I am satisfied that the higher hurdle is overcome. It is plain that the Council reached the wrong conclusion because it failed properly to direct itself as to the proper approach to be adopted in deciding whether there was use by the residents living together as a single household. Neither the members of the Council nor its legal advisers were aware of the two decisions of the Court of Appeal and the guidance there provided as to the indicia or characteristics of a single household.
16. [Paragraph 16 dealt with a discrete issue which it is unnecessary to consider on this appeal.]
17. I accordingly quash the Decision and direct the Council to redetermine the question of the lawfulness of the use of the Properties in the light of the terms of this judgment.”
i) that the residents in each of the Properties are not living together as a single household; on the contrary “there are as many households as there are residents” (paragraph 12);
ii) that in any event the Properties are being used as a single entity (paragraph 13) - so that, even if the residents were living together as a single household, there would be more than six of them;
iii) There has been a material change of use from the use of the properties as individual dwelling houses to the use of all three together (as a single planning unit) as a hostel (paragraph 14);
iv) as a matter of law those were the only conclusions which the Council were entitled to arrive at (paragraph 15).
Circular No 13/87
“5. The new Order is also intended to clarify the circumstances in which the establishment of small community care homes and hostels will require planning permission. For example, it provides that development is not involved when a dwelling house becomes used as a small community care home, provided that all the residents live together as a single household and that they number no more than six including resident staff.
Dwelling houses (Class C3)
27. … The key element in the use of a dwelling house for other than family purposes is the concept of the single household. In the case of small residential care homes or nursing homes, staff and residents will probably not live as a single household and the use will therefore fall into the residential institutions class, regardless of the size of the home. [Class C2, I should note, under the heading ‘Residential institutions’, includes, inter alia, ‘Use for the provision of residential accommodation and care to people in need of care (other than a use within Class C3 (dwelling houses))’] The single household concept will provide more certainty over the planning position of small group homes which play a major role in the government’s community care policy which is aimed at enabling disabled and mentally disordered people to live as normal lives as possible in touch with the community. … The class includes not only families or people living together under arrangements for providing care and support within the community, but also other groups of people such as students, not necessarily related to each other, who choose to live on a communal basis as a single household. The use of a dwelling house for other forms of “multiple occupation” will generally remain outside the scope of the Order and local planning authorities will continue to need to assess whether development is involved in each case on a fact and degree basis. However, most sheltered housing developments will fall within this class because they normally comprise a group of individual dwelling houses.”
My own approach
Lord Justice Robert Walker:
Lord Justice Clarke: