'Building Future Lives': Russell-Cooke wins appeal for a Certificate of Proposed Lawful Use

This application was to change a property's current lawful use as a private home to a home for young care leavers.

The facts

The charity originally purchased the property to provide semi-independent accommodation for up to six young people leaving the care system. Through this arrangement, young people living in the property can progress their skills to live independently, with targeted and minimal support if needed. For planning purposes, the applicants argued this should either be considered a residential institution, also known as a C2 Dwelling, but not materially different to the existing C3 use or within C3 itself.

The accommodation consisted of a large six-bedroom property which had been previously used as a private dwelling known as a Class C3(b) Dwellinghouse. The site also consisted of an adjoining annexe and onsite parking for four to five cars. 

Russell-Cooke assisted the charity in applying for the aforementioned certificate (otherwise known as a CLOPUD) to confirm the proposed use would not result in any material change of use so did not require planning permission. No structural or aesthetic changes were proposed to the building. 

The Council failed to give notice as to whether they accepted the above application, leading to the appeal.

In their submission, the Council argued that had it issued a decision, they would have refused it for the following reasons:

1. That insufficient information was submitted to show that the annexe was ancillary to the main property, and thus should not have been included in the application as a single planning unit.
2. That insufficient information had been submitted to show that the change of the property from a private dwelling house to residential institution for young people would not amount to a material change – and as a result the charity should have applied for planning permission as the proposed use amounted to a material change of use.

The burden of proof rested on the appellant, to prove to the Planning Inspectorate that the council’s reasoning was not well-founded and that the application should have been granted.

The Planning Inspectorate found in favour of the appeal, having looked at the reasons given by the Council above, and considered them against key points of evidence.

First, was whether the main property and the annexe formed a single or separate planning unit. The Council considered the points raised by the Council that as they were two separate addresses and separately registered for council tax, that they should be seen as separate planning units. However, the Planning Inspectorate found that the planning permission that originally changed the use of the annexe specifically stated that “it shall not be used as an independent unit of accommodation”. They also noted that the annexe had been used in practice for purposes incidental to the main property (e.g. for storage), and therefore on balance of probabilities the two parts should form part of a single planning unit.

Second, the Planning Inspectorate then considered whether sufficient information was available to determine the proposed change of use of the property. They looked at whether the proposed use would fall within categories other than C2, namely, Class C3(b) or C3(c) (this latter class is where no care is provided), or C4 (this is a house in multiple occupation or (HMO). They considered that the presence or absence of care was the central factor to determine which category actually applied. They found that as none of the care centred around providing medical or psychiatric care, but rather it centred around personal care (such as life skills advice including cleaning and budgeting), then the use would not fit into the existing class C3(b) category. 

The Planning Inspectorate then weighed up the findings from the case of North Devon DC and R(oao Crawley BC) to assess the principle whether care, as defined by the Use Class Orders, was being provided at all. Young residents under the age of 18, by virtue of requiring care as children, cannot form a household without a care giver (as per Article 2 of the Use Class Order). In principle, there was a possibility that as a result, the residents would not be considered as receiving care which might lead to it being categorised as a Class C (3) accommodation. However, they found that the definition of care in Article 2 was specifically extended for Class C2 to include the personal care of children and thus should apply in this case.

Finally, they then considered whether there would be a material change of use to the property given the proposed use was found to be within use class C2. They looked at how the home would operate on a day-to-day basis, including whether the home would replicate a typical family home (which reflected the character of the neighbourhood), whether the number of vehicles (from staff and family visitors) would increase vehicular movement and stress on local parking and whether noise levels would impact neighbours. They found that on all counts there would be no significant different impacts from its current use, and as a result, the appellant was correct in their application that there would be no material change of use.

The Council’s failure to respond, and assertions of refusal in their submissions was found not to have been well-founded and the appeal succeeded. 

The Planning Inspectorate’s decision highlights some key lessons that can be applied for any individual or organisation considering a Certificate of Proposed Lawful Use application to obtain confirmation that no material changes of use is proposed.

• Careful consideration of whether the proposed use represents a material change of use even if the proposed use is within a different use class: the decision showed the importance of a careful evaluation of day-to-day operations when considering whether a change of use presents a ‘material’ change of use. This means not just looking at the use classes in and of themselves, but also to the material impact of that change to the premises and the surrounding area. Drilling into this in an application not only improves the chances of a council accepting an initial application, but also in an inspector finding in favour if the decision is appealed.  
• Checking the ancillary uses of different parts of the premises: this decision also highlights the importance of considering when to treat different components of a property as a single planning unit. Again, this is very much based on the individual circumstances of the site, but as shown, an applicant should consider whether a component is used as ancillary to other components, whether it was sold as a separate premises, and whether any terms of previous planning permissions stipulate whether it should be treated as an independent unit.
• When is it worth appealing a decision: the decision also highlighted that whilst procedural failures by councils to make timely decision can be frustrating, they can also provide an indicator as to when it’s worth considering an appeal. It should be noted that whilst the burden of proof rests on the appellant, that burden is on balance of probabilities (i.e. is it more than 50% probable), which provides a more reasonable hurdle to clear at appeal. In this case, seeking advice throughout the process (leading up to the application and to the appeal) was instrumental in the applications success.

Thinking about changing the use of your property or currently dealing with a rejected certificate application? Contact our planning team today using the details below.

Alex Ground is a partner in the real estate, planning and construction team. She advises on all aspects of planning, highways and compulsory purchase including planning applications, appeals, negotiating s106 agreements, challenges and enforcement. John Thompson is a trainee in the same team.