England and Wales Court of Appeal (Civil Division) Decisions

		Neutral Citation Number: [2002] EWCA Civ 886
		Case No: QBACF/02/0738

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Lightman)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th June 2002

B e f o r e :

LORD JUSTICE SIMON BROWN
LORD JUSTICE ROBERT WALKER
and
LORD JUSTICE CLARKE
____________________

Between:


	THE QUEEN (on the application of YVONNE HOSSACK)	Claimant/ Respondent
	- and -
	KETTERING BOROUGH COUNCIL & ANOTHER	Defendant/ Appellant
	- and -
	ENGLISH CHURCHES HOUSING GROUP	Interested Party

____________________

(Transcript of the Handed Down Judgment of
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____________________

Simon Bird Esq
(instructed by Head of Legal Services, Kettering Borough Council) for the Appellant
Ms Hannah Markham
(instructed by Messrs Wood Shaw & Co) for the Respondent
____________________

HTML VERSION OF JUDGMENT
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Lord Justice Simon Brown:

Introduction

1. The Interested Party, English Churches Housing Group (“ECHG”), maintain some 28 houses within the United Kingdom to provide temporary accommodation and support for small groups (up to six people) of those in need - young homeless people, people suffering from mental health problems, people with learning disabilities, people with drug and alcohol addictions and the like. On or about 10 May 2001 the appellant authority (“the Council”) decided that the use of three of ECHG’s houses, Nos 83, 85 and 87 Broadway, Kettering (“the Properties”) falls within Class C3 of the Town and Country Planning (Use Classes) Order 1987 (“the 1987 Order”). Class C3, entitled Dwelling Houses, encompasses:

“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 …”.

2. The decision turned principally on whether the residents of the Properties were “living together as a single household”.
3. The Council’s decision was challenged by the respondent, who lives next-door to the Properties at No 89 Broadway, and contends that their use is as hostels (or, indeed, as a single hostel), use as a hostel being excluded from any of the specified classes by article 3(6)(i) of the 1987 Order.
4. On 25 March 2002 Lightman J quashed the Council’s decision and directed them to re-determine the lawfulness of the use of the properties in the light of his judgment.
5. The Council now appeal to this court by permission of Buxton LJ given on 24 April 2002 (a limited permission which we ourselves extended at the hearing). The Council do not, let me immediately make plain, seek to resist the quashing of their original decision. Rather they accept that they failed in reaching it to take account of certain material considerations and so must now re-determine the use of the Properties. What, however, they dispute is the correctness of the approach laid down by the judge to the issues which, on reconsideration of the matter, will determine the lawfulness or otherwise of the Properties’ use. They dispute in particular the judge’s apparent conclusion that for residents to be regarded as living together in a single household they must be bound by a relationship beyond that of “a common need for accommodation, support and resettlement”.
6. The respondent for her part accepts that the judge went too far in appearing to stipulate such a pre-condition for a single household and in appearing himself effectively to pre-determine the issue as to the lawfulness of the Properties’ use.
7. Whilst, however, there remains little difference between the parties as to how this appeal should be resolved, the correct approach to the concept of the single household is a matter of some general importance and it would be wrong to overturn the judgment simply upon a concession.

The facts

8. With that brief introduction let me at once turn to the relevant facts. These substantially are to be found in a report dated 13 September 1999 submitted by Mr Shields, the Council’s Senior Monitoring and Enforcement Officer, Development Control, to their Head of Legal Services:

“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.

Conclusion

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).’”

9. The Council’s eventual decision in May 2001 was reached on the basis of Mr Shields’ report and was notified to the respondent’s solicitors. Her evidence, I should note, establishes that over recent years she and her family have suffered considerably from the anti-social behaviour of some of the residents of the Properties and she is concerned also at what she conceives to be the fire risks presented by the Properties (both to the residents and to herself and her family as immediate neighbours). It is her contention that the use of the Properties is as hostels for which planning permission is required and has not been obtained. She furthermore contends that each of the properties is a “house in multiple occupation” within the meaning of Part XI of the Housing Act 1985 - defined by section 345 as meaning “a house which is occupied by persons who do not form a single household” - which is thereby made subject to the health and safety controls provided by that legislation including most particularly the requirement for adequate means of escape from fire and other fire precautions.

The authorities

10. The leading authorities as to what constitutes a single household were all decided in the context of the legislation governing houses in multiple occupation. I shall refer to three only. The first, Simmons -v- Pizzey [1979] AC 37, concerned a refuge for battered wives occupied by a shifting population of up to 75 women. Lord Hailsham referred to various dictionary definitions of “household” and also definitions to be found in a number of authorities and continued:

“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.”

11. In Barnes -v- Sheffield City Council (1995) 27 HLR 719 the Court of Appeal were concerned with a house let annually to five students. For the year July 1990 to July 1991 two of the students were in their second year, three in their third year. In July 1991 the three third-year students moved on and the two second-year students were joined by three more students, one a friend of one of the two remaining students, the other two not particular friends but students on the same course at the same university. The group of students were held to form a single household. Sir Thomas Bingham MR gave the only reasoned judgment. At p723 he began by considering one end of the spectrum: “the ordinary family” is “one very clear case of occupation by those forming a single household” even though “the pattern of life within that household could vary widely from family to family”. He continued:

“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.”

12. Sir Thomas Bingham then identified nine factors which he regarded as helpful considerations to bear in mind, essentially as follows (and I am now summarising in a few sentences what occupies nearly two pages of the Master of the Rolls’ judgment):

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.

13. The third case, Rogers -v- Islington LBC (1999) 32 HLR 138, concerned a house with ten bedrooms, one retained by the owner for use for some two months each year which he spent in the United Kingdom, the other nine let to people in their twenties who had just completed their further education and were embarking on careers in the professions or banking. On average the occupants stayed for two years. Although new occupants were recruited through advertisements the decision whether to accept them was made by the current occupants albeit subject to the owner’s veto. Each occupant paid rent. All of them joined together in running the house, keeping it clean and doing the shopping. They regularly socialised together by having house meals, day trips and evenings out. None felt it necessary to lock their doors.
14. Nourse LJ, giving the leading judgment, acknowledged that the issue “is without doubt one of fact and degree to which the answer may vary between different cases according to fine distinctions of fact”, but added that “to leave it there is of little help to busy environmental housing officers, who need a good working test to guide them in their day-to-day decisions as to whether houses are subject to the statutory control or not” (p140). Having then noted “the Barnes factors” which were said to have “caused serious problems for local housing authorities”, and referred to “representations as to the need for judicial clarification of the approach to be applied by environmental health officers”, Nourse LJ continued (at p141):

“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.”

15. Nourse LJ then turned to consider the judgment in the Barnes case and continued at p142:

“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.”

16. Finally, at p145, Nourse LJ concluded that the court below, in deciding that the occupants lived in a single household, had adhered too closely to “the Barnes factors” and had “overlook[ed] two crucial distinctions” between the two cases, first, that in Barnes there were only four or five occupants whereas in Rogers there were nine or ten; secondly “in Barnes the students, broadly speaking, came to the house as a preformed group for a predetermined period, whereas here the occupants came to the property one by one, mostly for indefinite and necessarily for dissimilar periods.”
17. Swinton Thomas LJ said this (at p146):

“… 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

18. Having considered those authorities Lightman J stated his conclusions as follows:

“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.]

CONCLUSION

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.”

19. Although ostensibly the judgment required the Council to redetermine the lawfulness of the Properties’ use, it will readily be apparent that in reality it left them with no alternative but to conclude:

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

20. It is convenient next, before addressing the particular difficulties which arise from Lightman J’s judgment, to refer to Circular No 13/87 issued contemporaneously with the 1987 Order as “a guide to the significant changes resulting from the making of the new Use Classes Order”:

“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.”

21. It may well be that this Circular was not before the judge below; certainly his judgment makes no reference to it.

My own approach

22. Central to the decision below was the judge’s conclusion that there was no sufficient relationship between the residents of the individual Properties for them ever to be regarded as living together in a single household; there was merely “a common need for accommodation, support and resettlement … [which] does not reflect or arise from any relationship between them”.
23. Is that, we must accordingly ask ourselves, the correct approach to the concept of a single household; must there in all cases of this kind be a relationship between the residents beyond their common need for accommodation and support?
24. For my part I think the judge went too far and was too prescriptive in his approach to the case.
25. Whilst I am disposed to accept that the authorities decided under the Housing Act 1985 apply equally to the construction and application of the 1987 Order - indeed, the contrary was not argued and it would plainly be most unsatisfactory to have a different approach to the meaning of single household depending upon the context in which the question arises - it seems to me important to bear in mind two particular considerations.
26. The first is this: as stated in the Circular 13/87, Class C3 is intended and apt to include small community care homes consisting of up to six people (including resident staff) “living together under arrangements for providing care and support within the community”. The first of “two crucial distinctions” identified by Nourse LJ between Barnes and Rogers was that in the former there were only four or five occupants of the house whereas in the latter there were nine or ten. The very fact that class C3 is restricted - save in the case of “people living together as a family” - to households consisting of “not more than six residents” is in my judgment a consideration of great importance in determining whether the residents form a single household. This is the second important consideration to bear in mind. If there are no more than six residents living together in the same house, it seems to me altogether more likely that they are doing so as a single household than if there are (significantly) more than six: the smaller the number of occupants, the more intimate, integrated and cohesive their occupancy is likely to be and the more apt, therefore, to describe it as a single household.
27. In concluding that people coming to a house neither as a preformed group nor for a predetermined period with merely “a common need for accommodation, support and resettlement” necessarily fail to enjoy a relationship which then enables them to be regarded as living in a single household, Lightman J seems to me to have gone rather further even than Nourse LJ went in Rogers. He certainly went further than Swinton Thomas LJ who concluded only that it would be “more difficult” in the case of those not coming and going as a separate group to establish that they nonetheless form a single household - a view with which I respectfully agree. I do not understand Swinton Thomas LJ to have concluded that homogeneity in a group of residents (as with the students in Barnes) is a necessary pre-condition in all cases to their forming a single household.

Conclusion

28. It follows from all this that in my judgment the Council must re-decide all the issues in the case - including not least whether the residents are properly to be regarded as occupying each house separately as a single household - in the light of the existing facts as they find them to be - and in this regard I should note that certain further evidence put before us respectively by the respondent and by Mr Richardson on behalf of ECHG is not easy to reconcile - and in the light of the law as I have sought to summarise it above. The precise nature of the relationship between the residents is clearly a material consideration - and a factor in the case which the Council now recognise was wrongly overlooked when they made their original decision. It is not, however, necessarily determinative of their decision that the residents of these properties were brought together only because of “a common need for accommodation, support and resettlement”. As Lord Hailsham said in Simmons -v- Pizzey, there are “no certain indicia the presence or absence of any of which is by itself conclusive”.
29. It is on this basis that I would allow the appeal.

Lord Justice Robert Walker:

30. I agree.

Lord Justice Clarke:

31. I also agree.
ORDER: Appeal allowed. No further order on the appeal.