QUEEN’S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| IN THE MATTER OF A judicial review under Part 54 of the CPR AND in respect of the Town and Country Planning Act 1990 (as amended) THE QUEEN On the application of YVONNE HOSSACK||Claimant|
|- and -|
|KETTERING BOROUGH COUNCIL|
ENGLISH CHURCHES HOUSING GROUP
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)
Mr Richard Banwell (instructed by Toller Hales & Colcutt, Castilian Chambers, 2 Castilian Street, Northampton NN1 1JX) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Lightman:
“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.
“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.
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).’”
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.
“(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.
“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.”