QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (on the application of YVONNE HOSSACK)
|- and -
|KETTERING BOROUGH COUNCIL
- and -
ENGLISH CHURCHES HOUSING GROUP
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Litton (instructed by Kettering Borough Council Legal Department) for the Defendant
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Richards:
"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)."
"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."
"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 institution class, regardless of the size of the home. 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."
"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 a 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 question 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.
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 occuping 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 ECHF 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'."
i) Whether or not a use falls within Class C3 is principally a matter of planning judgment and, therefore, one which is within the exclusive province of the planning authority and the court should only intervene if the decision is one which it can say was irrational in the Wednesbury sense.
ii) There is no litmus test which can be applied to determine whether a house was being occupied as a single household or not But there are a number of factors which are helpful considerations.
iii) Where a house is occupied by more than one person the occupants cannot 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 But there is no requirement that the occupiers should come to the house as a preformed group or for a predetermined period or that homogeneity in a group of residents is a necessary precondition to a group forming a single household
iv) Class C3 is intended to include small community care homes of up to six people who live together under arrangements for providing care support within the community and if there are more than six residents living together in the same house it is more likely that they are doing so as a single household .
"The starting point for determination purposes is the judgement of the Court Appeal on 25 June 2002 which I have studied carefully. The judgement indicates the need to re-consider all the issues in the case, and on that basis I have undertaken the process of determination by:
(1) carrying out a detailed site inspection of all three houses
(2) reviewing all relevant material the Council holds in its records
(3) reviewing all the issues arising from the Court of Appeal judgement
(4) assessing the current use of the properties in planning terms and in the context of (1) to (3) above"
"I inspected the three houses internally and externally on 16 July 2002, accompanied by ECHG's Senior Supported Housing Officer Mrs Jacqueline Martin. While carrying out the inspections I discussed with Mrs Martin the daily use of the houses having regard to the relevant planning and other material considerations. I particularly sought information from her which was pertinent to those issues which related to occupancy, relationship, mode of living, and the other considerations referred to in the recent Court judgements. Throughout the whole process of determination I have sought to check, where possible, the accuracy of information passed to me verbally with other existing sources of information. While carrying out the inspections I made eleven pages of hand-written notes which I enclose for your information."
"(a) Mode of occupation
At the time of inspection on 16 July 2002 there are currently four residents in 83 Broadway, five residents in 85 Broadway, with one room used by an overnight support worker; and six residents in 87 Broadway. The layout of the houses both internally and externally are sketched and described in the site inspection notes.
Residents in each house have a key to their own bedroom and to their own house only, they do not have keys to the other two houses, residents often choose not to lock their bedrooms. All bedrooms have a wash hand basin and standard bedroom furniture but no other individual facilities. There was evidence of multiple users sharing bathrooms from the range and amount of personal items that were kept in each bathroom.
The residents of each house often purchase, prepare and take meals together and share food preparation and storage facilities communally. Family size cooking utensils and serving dishes were noted in the kitchens of all three houses, as were family size packs of food in the fridges and freezers of each house.
The residents within each of the houses communally share all rooms and areas of the house (other than their own bedrooms) and the garden, and share the cleaning of the communal rooms and areas of the house. At the rear garden boundaries there is a two metre high panel timber fence between 83 and 85, and a brick wall of between one and two metres height between 85 and 87. There is one panel missing in the timber fence and a narrow gap in the one metre high length of wall. Complaints have been made that these gaps are used for common access across the rear of the properties by the residents of all three houses, but such use is denied by Mrs Martin.
Residents in each house socialise together and often arrange social activities for themselves as a household group. ECHG also sometimes arranges social activities for each household in pursuit of the organisation's wider objectives of promoting integrated communal living.
Each house is separately rated and utilities are provided independently to each house as a whole; there are no individual utility supplies or individual metering for residents. There is one fixed telephone point in a communal area in each house for the use of all residents; no individual telephone points are provided in any of the bedrooms, although some residents do have their own personal mobile telephones. ECHG subsidises the cost of tenancy but each resident pays rent which forms a contribution to the overall running cost of their house.
Residents vary in the length of time they stay, but the average length of stay for most residents is about six months, sosme stay for as long as a year while some will stay for shorter periods.
(b) The nature of the relationship between residents
(c) Whether residents live as a single household
ECHG's objective is to provide temporary affordable accommodation to young people who for whatever reason are homeless. All residents who come into the properties clearly share this common need for housing. They often have similar age, social and cultural backgrounds, and life problems and ambitions, and it is the view of Mrs Martin, who has contact with them on a daily basis, that their common life experiences and backgrounds are the basis of a relationship between them; and that this is the common thread which brings about a unifying relationship between the residents of each house. She refers, for example, to residents sometimes deciding to pool their income together to absorb temporary financial hardship to an individual, thereby giving some financial and social stability to all of the residents of a house as a whole.
During my inspection there were clear indications of communal living in each house, all of which supported Mrs Martin's explanation of how people generally lived in the houses for example the sharing of costs, meals, cleaning, socialising, and the communal use of bathrooms, kitchens and house equipment.
(d) Whether the use of the three houses can rightly be considered to be three separate units
One bedroom (B2 on sketch plan of No.85 Broadway) is used purely for sleeping in by an overnight support worker. The support worker, both during the day and night, provides a means of support/care to all the residents of all three houses. One spare bedroom (B2 on sketch plan of No.83 Broadway) is used by ECHG for office purposes in respect of the three houses. Residents of all three houses pay their rent to the support worker on duty, usually at this office. The room, its contents, and level of use appear typical of many spare bedroom/offices found in dwelling houses; indeed such use of a bedroom in a dwelling is generally considered to be incidental to the use of the dwelling, rather than amounting to a material change of use.
Mrs Martin stated that most of the administration in relation to ECHG's running of the three houses (and other properties in Kettering) is now done at the ECHG's central office on Station Road, Kettering, and that the function of the current office-use in the bedroom of 85 Broadway could easily cease without any impact on the residential use of the houses, save only that it would be more inconvenient for residents paying their rent. She emphasised the point that the bedroom always was and is available for immediate re-occupation as a habitable bedroom if the demand for accommodation made it necessary. I consider that the use of one bedroom for office purposes in this way is minor in nature and incidental to the use of the dwellings; both individually, and in the context of any two or all three of the houses if they were to be considered as single unit.
In this case, notwithstanding the level of use as discussed above, it is also necessary to consider the existence and function of the office, and the provision of care across all three houses, in the context of whether they amount to, or contribute to, the formation of a single planning unit of any two, or all three houses and residents. In this regard it is clear that the function of the office serves all three properties [albeit in a minor way] therefore this must be balanced and weighed along with all other considerations in determining whether there has been a material change of use. In my opinion the office function and provision of care (in relation to all three properties) whilst material is not sufficient, by itself or in combination with any other factors, to establish that there has been the formation of a larger planning unit. There are many other factors relating to the use of the properties (summarised in this report and enclosed inspection notes) which when taken into consideration as a whole establish that the use of the three dwelling remain physically and functionally distinct from one another.
(e) The Town and Country Planning (Use Classes) Order 1987 and Government Circular 13/87
In taking into account all of the considerations arising from the judgement of the Court of Appeal in respect of the implications for this case I note in particular that which their Lordships considered of 'great importance', at paragraph 26 of the judgement:
'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 resident" is in my judgement a consideration of great importance in determining whether the residents form a single household'. "
"In consideration of the use of the three properties separately there are overwhelmingly far more factors which indicate their use as dwelling houses (falling within Class C3 of the Town and County Planning (Use Classes) Order 1987) than there are otherwise. With regard to the question of whether the houses can rightly be considered as separate dwellings (as opposed to a larger planning unit comprising of two or all three houses) I would conclude on balance that the evidence that they are single dwellings far outweighs any other factors which might indicate otherwise. The existence of an element of common care and ancillary office use in relation to all three houses, and the fact that physically they are adjoining terraced houses, whilst being material considerations, are not sufficient to establish that they exist and are used as a single unit. Far more persuasive that they exist and are used as separate dwellings are the very many other factors referred to in this report which, when taken into consideration as a whole, establish the shared communal living of residents in each house as a single household, taking place in each house separately both functionally and physically. I conclude therefore that the existing use of the three houses remain as individual dwelling houses each with use class C3 of the Town and Country Planning (Use Classes) Order 1987."
"As indicated in my letter of 9th January, I have discussed with Mr. Shields the content of this material. Briefly, it is not considered that anything said therein warrants the council revisiting the question of determination of the user of the premises in land-use planning terms; and, indeed, the testimony in the round is largely corroborative of the conclusions previously drawn and relied upon.
For example, Miss A's observations concerning the alleged cleanliness of the kitchen and bathroom areas are strongly indicative of a communal use of these facilities, notwithstanding that the way in which that use occurred might have fallen short of her own particular standards. Of course, a wide variety of conditions might be encountered across any given representative sample of 'typical' domestic households, and simple failure to achieve an arbitrary minimum standard does not make any one any the less such a household in planning terms.
Similarly, the commentary concerning Miss A's perceived isolation from her fellow residents is also generally confirmatory of the council's assessment. The submitted testimony, whilst describing Miss A's unfortunate experiences and highlighting certain behaviours that would be unacceptable in many households, does globally describe small groups of residents sharing a common, if marginal, lifestyle that is not considered to be inconsistent with a balanced conclusion that the individual properties are used and occupied separately in planning terms.
Using the same 'typical' sample of households referred to above, an interested observer might reasonably expect to see any such member residents jointly or severally engaging in activities including associating with neighbours, visiting public houses in varying company from within or without the household, engaging in misbehaviour (even to the point of being antisocial), or arguing/fighting.
Whilst undoubtedly unappealing, none of the negative behaviours described are considered to be of sufficient weight so as to indicate a change of use in respect of the premises in the context of the guidance handed down by the Court. Rather, the submitted evidence is considered to present a regrettable picture of the witness' singular experience in failing to integrate with her fellows amongst one particular household; and, again, comparison against a 'typical' model might well reveal similarities with many traditional domestic arrangements where, say, young adult family members are starting to assert their independence or even in some degree of conflict with the remainder of the household.
Turning to the issue of the refrigerators that are stated to be in certain bedrooms, Mr Shields has confirmed these were not evident to him at the time of his last two inspections although he is aware that residents are provided with a small portable refrigerator-box in the run-up to, and to assist, their moving on to independent living in their own accommodation.
During his inspection of the premises in 1999, a few of these were seen in bedrooms and several more were seen stored together on a shelf. The then manager of the project (Mrs R Silk) explained at that time the purpose of these appliances, which were so small (perhaps only measuring 40x40x30cm) as to be capable of storing only a few items such as milk, canned drinks, or snacks. Certainly, the devices seen were not of a design or capacity to satisfactorily perform the function of keeping fresh the perishable provisions needed by an independent person to live on for a week or even a few days.
Mr Shields recalls Mrs Silk further explaining that leaving residents often never bothered to take their refrigerator-box with them (clearly indicating their limited functionality) and those left behind would simply be stored and sometimes commandeered by newer residents, especially those occupying the upper floors most distant from the communal refrigerators and freezers in the main kitchens of each house for convenience.
It is not considered that the use of such appliances by some residents indicates 'separate occupancy' any more than the use of one by our 'typical' family member for purposes of keeping milk fresh in a bedroom for, say, use with a morning 'teasmade' device. "
MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in the judgment handed down, the claim for judicial review is dismissed.
MR LITTON: My Lord, I have an application for costs, and, obviously, the claimant should pay the defendant's costs. I do not think that the principle of paying our costs is disputed. There has been some negotiation as to whether or not an agreed position can be reached, but that has not been possible. There are two summary assessments: a schedule of costs that were, I think, before your Lordship on the last hearing. Our costs have been revised downwards because they were based on a hearing estimate of a day and a half.
MR JUSTICE RICHARDS: Do I need to look for those earlier summary assessments or is there a fresh copy now?
MR LITTON: I have a copy of the original assessment. (handed)
I think there are two areas where those expenses have come down. Under the heading "Attendance at hearing", the travel and waiting time has come down to reflect the fact that we were only here for one day, and not the two days. Similarly, in terms of my own fees, there is some refreshment. So the bottom line figure, if I can give you that, reflecting those amendments is now £17,605. I do understand that there is, as I say, disagreement with some of the items in relation to our costs, but perhaps you can hear from my learned friend on those items, and then I will respond?
MR JUSTICE RICHARDS: Yes, certainly.
MS MARKHAM: My Lord, I hope you still have a copy of the claimant's summary of costs.
MR JUSTICE RICHARDS: I have not. (handed)
MS MARKHAM: The first area that I am instructed to question is the attendances upon the opponent.
MR JUSTICE RICHARDS: Yes, 15 hours.
MS MARKHAM: It is 17.5 hours in total, if you look, 2.5 hours (inaudible). You will note that we have cited only 4 hours' attendance on our opponents. There appears to be a very large discrepancy there, and I would submit that is excessive and unreasonable, and does not appear to be borne out by the correspondence in the papers, particularly when the claimants cited only 4 hours. I would, therefore, invite your Lordship to reduce that time to 4 hours.
In addition to that, there are 10 hours cited as time spent on the interested party. Again, we simply suggest that that may be an unreasonable amount of time, when you take into account the time that the claimant has spent in attendance on others, which includes witness statements prepared within the bundle, talking to other witnesses, and the interested party themselves. There was a great deal of negotiation between the claimants and the interested party before that resulted in a letter being prepared for court as to areas agreed between the interested party and the claimant, which resulted in the interested party not attending court.
You will note that the defendant has cited 10 hours in attendance on interested party, and a further 10 on others. I am not certain as to whom those others refer. It appears to me, having looked through the bundles again last night, that there is very little in respect of other people. I have very little idea as to whom the defendant is referring. Therefore, I would submit that is an additional 10 hours, and we say excessive in the circumstances of this case.
The next area is the 67.5 hours that have been cited as work spent on considering and preparing research and documentation. That is in addition to counsel's time spent on preparing research in the advice, skeleton and hearing brief that is further referred to. It appears to me wholly excessive and wholly unreasonable to expect the claimant, who prepared the bundle of the case, to have to find fees of 67.5 hours by the defendant, particularly when one recalls that this is a matter that has been before the court before. A vast amount of the one witness statement -- which had a very substantial exhibit to it, I accept that -- was already before the court in previous proceedings. The documentation was duplicated from the previous proceedings, and one simply asks the question, how long would it really have taken to get that information together, and would a senior solicitor have undertaken the photocopying of that? Is 67.5 hours a realistic and proper time to have expended on that?
Further, I am instructed to ask the court to consider whether or not £2,500 as a brief fee for my learned friend for the hearing on 3rd July is an appropriate fee, particularly when this court rose at 12 o'clock. I take that no further. I feel somewhat in difficulty making submissions on that, but I was instructed to do so. I am not going to take that any further.
I think that is all I need to say. It is a comparison between the claimant's figures and the defendant's figures.
MR JUSTICE RICHARDS: Yes. Now some of items -- it is all very well raising doubts as to whether work was done, but without going through the documents in the way that a costs judge would do, I am not in a position really to resolve the matter. One can either adopt the rather robust approach of summary assessment, or one sends it off for detailed assessment. Are you inviting me, if in doubt, to send it off for a detailed assessment?
MS MARKHAM: My Lord, if you are in doubt, I would ask you to do so. It seems to me they are wholly excessive when one looks at the bundle before the court.
MR JUSTICE RICHARDS: Thank you.
MR LITTON: My Lord, in so far as attendances on opponent, the figure that is given there, 17.5 hours in total, is the figure that I am instructed that my solicitors spent in dealing with Mrs Hossack. The fact that she only records 4 hours, in my submission, is neither here nor there. It could be because she under recorded as much as the suggestion that is being levied against us that we have over recorded. My Lord, you will be aware of the contentious nature of this litigation between the parties. In my submission, that figure of 17 hours in total is not in anyway unreasonable.
The figure on the interested party plainly relates to the English Churches Housing Group. The figure on others, I have to confess, my Lord, I simply do not know. That is the 10 hours, being the last line under attendances.
The major item, plainly, is the work on considering bail and research and documentation, at 65 hours plus the 2.5 hours at £160 per hour. I do not accept that the majority of paperwork that was put before this court in the form of Mr Shields' exhibit 2 was before the previous court. I was not at that court but I know, because I had a hand in advising on it, that this witness statement was put together for the purposes of this action. The exhibit itself, my Lord, is substantial. It has documents that are drawn from a number of different council files. It was necessary for counsel to go to those lengths to make sure that all the material was before the court, not least because Mr Shields in his memo refers to the fact that he had taken into account all the previous material. It would have been perhaps easier and less time consuming if we had simply put all the files before the court, but I do not suppose that the court for a moment would have welcomed that. What we have done is undertaken our duty responsibly in seeking to extract the relevant documents from the relevant files so that only that which is relevant is before the court. That was a time-consuming process.
You will also recall that although the issue which ultimately became one that your Lordship had to decide was a very narrow one, the grounds identified in the claim form and, indeed, the skeleton argument went rather wider than that. The concessions that were given were concessions that were given in the hearing. Therefore, we had to prepare a defence on the basis of the claims that we thought we were having to meet, not the ones that were subsequently banned. So I do submit that work spent on considering and preparing research and documentation is not unreasonable.
My brief fee -- your Lordship will have to take a view about that. I would ask you to record that this case was identified as one that was going to last a day and a half by my learned friend, presumably on the basis that that was what she thought the case would take, if she advanced all her grounds. As I say, in the event it was only half a day. I think that is actually the estimate that I gave. But that was because she abandoned progressively the number of her grounds so that it came down to the single ground that indeed could be dealt with shortly.
MR JUSTICE RICHARDS: Thank you.
I am going to order the claimant to pay the defendant's costs, but those costs will be subject to detailed assessment, if not agreed. The reason I adopt that course rather than trying to fix a sum by way of summary assessment is that certain of the figures on the defendant's schedule for time spent on various matters do appear to me, on the face of it, to be unreasonably high, especially when compared with corresponding items in the claimant's schedule. The overall figure for a case of this kind also seems to me to be, on the face of it, unreasonably high. It is not a case where I would expect the defendant's costs to be roughly double the claimant's costs, but I cannot resolve the issues of fact without a detailed examination of the work that it is claimed was done on this case, and it seems to me that that is best dealt with by way of a detailed assessment, if the parties cannot in the meantime agree on some lower figure that is claimed by the defendant. I would hope that if there is a detailed assessment, and if the figures put before me are found to be excessive, that will be taken into account in determining where the costs of a detailed assessment should lie.
Thank you very much.