England and Wales High Court (Administrative Court) Decisions

Hossack, R (on the application of) v Kettering Borough Council & Anor [2002] EWHC 493 (Admin) (25th March, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

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

Mr Justice Lightman:

INTRODUCTION

1. By this application, the Applicant Yvonne Hossack (“the Applicant”) challenges in judicial review proceedings the decision (“the Decision”) of the Defendant Kettering Borough Council (“the Council”) made on or about the 10th May 2001 that the use by the Interested Party English Churches Housing Group (“ECHG”) of each of the three properties, Nos 83 (“No 83”), 85 (“No 85”) and 87 (“No 87”) Broadway, Kettering (“the Properties”) falls within Class C3 of the Town and Country Planning (Use Classes) Order 1987 (“the 1987 Order”). The essential issue before me is the validity of the Decision and in particular whether the Council was entitled to conclude that the use of each of the properties is by the residents living together as a single household. The Applicant contends that the Council was not so entitled: the only conclusion which it could reasonably reach was that each of the Properties is used either singly or together as a hostel.

FACTS

2. The Applicant lives at No 89 Broadway, Kettering, next door to the Properties, and is directly interested in, as she is directed affected by, the use of the Properties.
3. For some 11 years ECHG has provided temporary accommodation for young people in need of accommodation at one or more of the Properties. The present day position is that all the Properties are used for these purposes. The Applicant’s evidence establishes that over recent years she and her family have suffered substantially from the unlawful and anti-social behaviour of residents of the Properties and that she has had occasion to complain about the use of the Properties and the behaviour of the residents both to the Council and the ECHG. The primary focus of dispute between her and the Council has been whether the current use of the Properties constitutes a breach of planning law.
4. The lawful use of each of the Properties for planning purposes is use falling within Class C3 of the 1987 Order which reads as follows:

“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).”

Excluded from such lawful use is use as a hostel. The Applicant has repeatedly complained to the Council that the use of each of the Properties does not in fact fall within Class C3: their use is as hostels for which planning permission is required and has not been obtained.

5. It is unnecessary to detail the lengthy history or correspondence. It is sufficient to focus on recent events. On the 13th September 1999 Mr Shield, the Council’s Senior Monitoring and Enforcement Officer, Development Control, reported to the Council’s Head of Legal Services as follows:

“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 [sic] 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 residential support worker.

2. There is not (and never has been) any 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 an 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 that 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).’”

6. The Council on the basis of Mr Shield’s report made the Decision (which was to the same effect) and on the 10th May 2001, the Council wrote to the Applicant’s solicitors informing her of the Decision.
7. The Applicant made a secondary complaint that there was unlawful use made of No 83 for office purposes with accommodation for a support worker. Mr Shield inspected No 83 and found that three bedrooms were being used as offices and one room as accommodation for the support worker. Mr Shield decided that this constituted a material change of use from its lawful use (a dwelling house within Class C3) and that (in default of an application for and grant of planning permission for this use) enforcement action should be considered. On the 17th May 2001 Mr Shield wrote to ECHG informing it of this decision. ECHG responded that it would discontinue this use. The Council thereupon blandly told the Applicant that the necessary remedial action had been taken. The Council was not forthcoming as to what this was. This reticence was the occasion for a claim by the Applicant for relief in regard to the use of No 83 for office purposes. For the first time at the hearing and at my specific direction the Council disclosed that to meet this complaint it had confined use as offices to one bedroom only and moved the accommodation for a support worker to a bedroom at No 85.
8. On this application, beyond or in elaboration of the matters of fact set out in Mr Shield’s report dated the 13th September 1999, the following facts are common ground:

a) the goal of ECHG’s project in respect of the Properties is to provide temporary accommodation for those in need (and in particular to get them off the streets) with a view to subsequent resettlement;

b) there is a steady turnover of residents. Their stay may be longer or shorter but the average is about 3-4 months;

c) ECHG selects the residents, decides how long they will stay and when they shall leave and allocates rooms to them;

d) there is a support worker 24 hours a day present at one of the Properties and one bedroom is allocated to the night staff. This was originally at No 83, but when the challenge was made to the office use of No 83 and to “see off” this challenge, this was changed to a bedroom at No 85;

e) Nos 83, 85 and 87 are terraced houses, each of which has some 6 bedrooms, but one of which is an attic room used for storage. There is a connecting door between No 85 and No 87 on the first floor which is locked but to which the staff have a key and the staff actively use this access in the course of their duties;

f) residents are able to pass freely between and use the grounds at the rear of the Properties. The boundary walls have been deliberately breached to enable such use to be made;

g) there is a single and unified management and staffing of the Properties. There is a single administrative office in No 83 where each individual resident of all the Properties pays his “rent” and which is the control room for CCTV which has been fitted to oversee the use of the Properties and provide security and identify trouble makers;

h) throughout the year (save at Christmas) the residents have to shop, prepare their food and eat individually, though they can (and do) make informal arrangements with each other in this regard.

LEGAL ANALYSIS

9. Article 3(6)(i) of the 1987 Order provides that use as a hostel is to be treated as a class of use of its own and accordingly use as a hostel falls outside Class C3. The question raised by the Applicant’s complaint to the Council and on this application is whether there has been a material change in use of the Properties taking the Properties outside Class C3 and within the ambit of Article 3(6)(i). On this application challenging the Decision, I must bear in mind that matters of planning judgment and fact are within the exclusive province of the Council: I am only concerned with the legality of the decision-making process, and not the merits of the Decision. I can only intervene if the Decision was one lying beyond the range which a reasonable tribunal of fact, directing itself correctly in law, could have reached.
10. The question to be addressed is accordingly whether the Council could reasonably conclude that the use of each of Nos 83, 85 and 87 was “use as a dwelling house by ... [the] residents living together as a single household”. There are two recent authorities which throw some light on the meaning of the words “single household”, albeit in a different statutory context, namely Part XI of the Housing Act 1985 which makes provision for the regulation of houses in multiple occupation. Section 345 of that Act provides as follows:

“(1) In this Part ‘house in multiple occupation’ means a house which is occupied by persons who do not form a single household.”

Though the statutory context is different, that guidance is of assistance in construing and applying the 1987 Order.

11. In Barnes v. Sheffield (1995) 27 HLR 719 the Court of Appeal held that a pre-formed group of 5 students occupying a property on the facts of that case formed a single household. In the course of its decision, the Court considered nine factors which might be relevant in deciding whether there was use as a single household. In Rogers v. Islington BC [1999] 32 HLR 138, the owner of a house with 10 bedrooms retained one for himself and let the other 9 to a maximum at any one time of 9 persons embarking on the careers. The 10 residents enjoyed together a communal life. The Court of Appeal (reversing the recorder) held that 10 residents did not form a single household. Nourse LJ (with whom Swinton Thomas and Mummery LJJ agreed) stated:

“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 relationships are family, employment and long-standing friendship. In some households two or even three of such relationships may exist together: for example, a household consisting of parents with young children, a nanny and an old friend of the parents. In other households none of those relationships may exist: for example, a household with one or more paying guests who live as part of the family. In cases such as these there will usually be little difficulty in recognising the occupants as forming a single household.

The difficulty comes when there is no such relationship as those already mentioned. In order to identify the difficulty it is helpful to start by referring to the facts in Barnes v. Sheffield C.C. I take them from the judgment of the Master of the Rolls at page 721:

‘The house in question is described as a small, turn of the century mid-terrace house. On the ground floor there are two rooms. One of those has at all times been used as a kitchen and dining room. The other room was between 1991 and 1992 used as a bedroom with a lavatory and also two bedrooms, one of them small. On the second floor there are two attic bedrooms. Outside the house there is a yard with an external lavatory.

In 1990 Mr and Mrs Barnes bought this house and did it up. They then let it for the period July 1990 to July 1991 to five students. Two of those students were in their second year and three in their third year. In July 1991 the three third year students moved on and the two second year students stayed in residence. There then joined them three more students, all of them girls. One was a friend of one of the two girls; the other two were not particular friends but students on the same course at the same university.’

Having referred to the three statutory notices served on May 22, 1992, the Master of the Rolls continued:

‘At the time these notices were served Mr and Mrs Barnes had already let the house for the academic year July 1992 to July 1993 by an agreement which they had made in February. The other parties to the agreement were four young men, also students, who agreed to take the property for that year. As it happened, those four students remained in occupation after July 1993 for another year, but that is irrelevant to this narrative.’

Those were the essential facts of that case. After considering the nine factors and having stated that he could not regard the differences in the living arrangements between the two occupancies as being in any way critical, the Master of the Rolls said, at page 725:

‘It is inherent in student life that different students will come and go at different times and that groups will vary in their habits so far as sharing expenses and generally mucking in are concerned ...’

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.

...

In my judgment the recorder, through too close an adherence to the Barnes factors, erred in his conclusion. He was led to overlook two crucial distinctions between that case and this. First in Barnes the occupants were only four or five in number, whereas here they were nine or if as I think he ought to be, Mr Rogers is included, they were 10. 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. However, much weight is attached to their communal life when they got there. I do not think that there was between the numerous and shifting occupants of the property a sufficient relationship for them to have formed a single household. Although it may offend Mr Rogers’ justifiable pride in the community he has established, it has to be said that, for the purposes of the 1985 Act, the property is not different from an ordinary lodging house.

I would add my provisional view that, although the facts in Barnes must be representative of very many similar cases in university towns and cities throughout the country, they were near to the line. Be that as it may, the facts of the present case are, for the reasons I have given, clearly distinguishable and fall on the other side of the line.”

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 a 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 which 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. Their 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 (e.g. 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 that 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, i.e. buildings providing relatively short stay and inexpensive sleeping accommodation and shared communal facilities e.g. 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 hostels (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 BC): I must conclude that it was a decision which the Council could not reasonably reach, properly directed as to law. I am satisfied that this 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. In the light of my view on the validity of the Decision, it is unnecessary to consider further the Applicant’s secondary complaint regarding the use of No 83 and the Council’s decision that the office use of No 83 has been discontinued. I must express some concern that the Council only saw fit to explain this decision at my instance in the course of the hearing. It is not an unreasonable inference that the cause for its reticence was the embarrassment to the Council in being required to disclose that the remedial action was a transparent device which merely transferred the “problem” from the use of No 83 to that of No 85.

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.