We have written before about the differing views of planning authorities to what constitutes a material change when setting up a residential home for children in an ordinary residential property.  The issue being that when the change is material, then planning permission is required.  Conversely, when it is not considered to be material, then permission is not required.  Where an authority judges that the change is not material, Providers can then secure their position to apply for a certificate of lawful development.

The issue of materiality has been a point of contention for Providers for some time, seriously impacting their ability to set up new homes given the risk involved as they purchase or lease a property, hoping that they will subsequently secure permission.

Commissioners have found it frustrating that they have encountered substantial and often misinformed objections from local communities, reducing their ability to access new homes within their locality, for local children.

A study by the Competition and Markets Authority (CMA), Children’s Social Care Market (March 22)i highlighted this concern, identifying planning as one of the key barriers to entry.  However, a recent decision by the Planning Inspectorateii may have changed this situation.

Background
A planning application for the issue of a certificate of lawful development was refused by the planning committee, following the recommendation of the Planning Officer.  The underpinning principle being that the proposal (use of a 4 bedroomed mid- terrace house as a 2-bed residential home for children) constituted a change of use from C3 (ordinary residential) to C2 (care home).  The issue of materiality is at the heart of this.

At appeal, the Planning Inspector found in favour of the applicant.  She overturned the decision and issued the certificate of lawful development and in doing so, made clear that the circumstances did not constitute a material change.

The Planning Inspector’s Findings
In outlining the case, the Planning Inspector states, “For the avoidance of doubt, the planning merits of the proposed use are not relevant to an appeal under section 195 of the 1990 Act. Therefore, comments from local residents concerning perceived impacts on living conditions due to noise and disturbance, anti-social behaviour, on-street parking and loss of privacy cannot be taken into account since these matters concern the planning merits. I must examine the submitted factual evidence, the history and planning status of the site in question and apply relevant law or judicial authority to the circumstances of this case.”

“What must be determined is whether the increase in the scale of the proposed use would reach the point where it would give rise to such materially different planning circumstances that, as a matter of fact and degree, it would result in such a change in the definable character of the use that it would amount to a material change of use.”

As always, the details are important and there are points of reference to note regarding the scale of the proposal, including:

Intensity of Use:
“The use would be as a children’s care home, in which no more than two children would be resident at any one time along with their two staff carers. A manager may also be at the premises during the daytime on certain weekdays. The only time when there would normally be more staff is during the handover between shifts, which would take place every two days. It is also anticipated that there may be one or two visits from social workers or other professionals each week.”

“For the vast majority of the time, there would be a maximum of four persons present on site (two children and two adults).  There would be comings and goings to and from school, staff handover times, plus social, recreational and other outings.  However, I agree this would not be materially different from the number or pattern that would be reasonably expected with a family of four carrying out their day-to-day activities.  While there would be additional visits from other professionals, this would likely be comparable with social visits from friends and family associated with a household of four.”

Vehicular Activity:
“The parking demand generated by the proposed use is likely to be higher than would be typical for most 4-bed, mid-terrace homes.  However, the increase would not be significant given the proposed number of resident children and the consequent numbers of carers or professional visits.  In addition, the area is relatively well-served by public transport and so parking demand may not be as high as the Council envisages.  I do not consider the use would have a material impact on its surroundings in this respect.”

Ending her findings, the Planning Inspector concluded, “Overall, I find that, as a matter of fact and degree, the scale of the proposed use would not reach the point where it would give rise to such materially different planning circumstances that it would result in such a change in the definable character of the use that it would amount to a material change of use.  No express planning permission would be required for the change of use and it would have been lawful had it been instituted on the date of the application.”

Coral Reef’s Viewpoint
In the face of this judgement, a precedent has been set that will be difficult for authorities to avoid. It’s worth noting that the Planning Inspector also granted costs to the applicant in this case, setting the scene perhaps for others to note.  Planning Officers and Committees may wish to consider in advance their position and confirm their view.  No doubt there will be differing local interpretations on the detail, so this may be the start of a flurry of appeals that will in time determine a reliable and accepted national view.

An established nationally accepted position would at least set the bar evenly.  The benefit being that Providers would be able to better assess risk when considering developing new homes for children, so increasing supply.  Commissioners would increase their local market and in doing so move towards meeting their sufficiency duty.

Downsides?
There may be a loss of influence over local markets where Providers develop homes based on lower regional property prices, becoming net importers of children into the area from far afield.  For example, London boroughs already locate some children a long way from home due to the lack of local availability. It is tragically unfortunate that pressures such as these impact both the children placed many miles from home and the local areas which have to compete for the places in their own borough.

The response of local communities to the creation of homes for children without any form of planning control will be one to watch.  Given some of the extreme responses we have seen and heard voiced around planning applications, this may be a concern.

Another thought which we know planning officers are considering in light of this decision is how applications to increase occupancy numbers over time will be impacted: a small home for two children once established over a year or two may then wish to add another two beds to the service.  Dealing with a planning application for an established service will undoubtedly require a different approach to dealing with one from scratch.

We shall watch with interest how this unfolds.

Graham Hallows is a founding partner of Coral Reef, supporting Local Authority Children’s Services with their commissioning strategy, sufficiency duties and local market shaping.

i https://www.gov.uk/government/publications/childrens-social-care-market-study-final-report
ii https://acp.planninginspectorate.gov.uk/ViewCase.aspx?caseid=3300634