In planning for age restricted housing, recent appeal decisions are very pertinent in building a case for new developments. This recent appeal in Sidmouth, Devon is particularly helpful in considering the use class of extra care accommodation and the main points are summarised below. The Inspector Michael Boniface concluded the proposals fell within Use Class C2 and provided some very helpful commentary (which will be re-produced below) and highlighted the elements of the proposal which set it apart from general C3 residential dwelling houses.
This appeal was for a a PegasusLife assisted living community for older people including 113 self-contained extra care units, staff accommodation and ancillary facilities in Sidmouth, Devon. The site comprised the existing East Devon Council buildings. Alongside issues such as the effect on character and appearance of the area, and neighbouring properties was the consideration of whether the development would be Use Class C2 (residential institution) or C3 (residential dwelling house).
The issue of use class came into play regarding whether or not affordable housing would be required from the development. If the Use class was found to be C3 (residential dwelling house) then affordable housing would have been requested by the Council. In an unusual situation the Council had accepted prior to the Inquiry that the provision of affordable housing was not viable however, they had agreed with the appellant an overage clause in a S106 to enable contributions to be paid if the scheme was subsequently found to be capable of making a contribution.
There was no dispute that the proposal formed extra care housing using the Department of Health’s Extra Care Housing Toolkit and local documents. Also accepted by both parties was the need for extra care accommodation within East Devon.
The Inspector considered the nature of the whole proposal during the course of the Inquiry; noting that although the 113 extra care apartments would be self-contained they would be accessed from communal spaces and also highlighted the large amount of communal facilities which would be on offer.
“Each apartment would include a range of specialised features and adaptations such as wheelchair accessible doors, electric sockets, level threshold showers and a 24 hour emergency alarm system. All of these features are likely to improve the safety and comfort of the intended occupants and would not necessarily be found in other housing stock”
He further acknowledged that these facilities such as physiotherapy suite and hydrotherapy pool would be aimed at supporting independent living in a social and safe environment and that they would also be open to the general public to encourage interaction with the outside world.
“Importantly, this is also a level of provision that is likely to exceed that expected in other residential environments, though some flatted development might incorporate some facilities.”
The S106 provided included a restriction of occupation to those over 60 years of age (It was noted by the appellants that the average age is likely to be 73 years) and in need of at least 2 hours of personal care per week established by a health professions. A definition of personal care was proposed and was criticised by the Council as being too broad. The Inspector disagreed and stated that:
“Whilst many of the activities listed might be taken for granted by most people, every one of them is likely to become more challenging in advancing years. Many residents might only require relatively limited personal care, perhaps the minimum amount of 2 hours per week, but there are also likely to be many who require substantially more than this. Furthermore, the age restriction associated with the development is such that the need for personal care will inevitably increase for many people with age. I accept that not all people will require the same level of care at the same point in their life, but what is important is that care is available to meet their individual needs as and when the time comes. That is what the scheme seeks to provide.”
Care was proposed to be provided through an off-site CQC registered domiciliary care agency and there would be an on-site care manager. The Inspector concluded that,
“Neither the fact that care would be provided by an agency or that they would not be permanently based on the site weighs against the proposal in my view, nor does it indicate that the scheme is more akin to a dwelling house than a residential institution.”
The appellant provided evidence that the service charge associated with the units would be around two and a half times that of a standard retirement development and residents would be paying a premium for this, because of the facilities and care package available. The Inspector stated that,
“This is likely to deter prospective occupants’ who are not in need of such facilities. The planning obligation would provide certainty in restricting the age of primary occupants and ensuring that a minimum level of care is needed and taken up by future residents.”
The conclusions of the Inspector are very useful in differentiating Extra Care C2 proposals from C3 general housing developments and are:
“For all of these reasons, it is clear to me that the development is offering much more than a dwelling house. Independent living accommodation is one element of the scheme but that would be provided alongside a range of communal facilities that are inextricably linked to an expected way of life. The scheme is designed to meet the needs of the target occupants and facilitate assisted living as well as social well-being and interaction with the outside world. Care would also be provided, specifically tailored to the needs of the occupant. Whilst some primary occupants of the development might, upon taking up residence, require only the minimum level of personal care there is likely to be a mix of care needs at any one time and those with limited need may well require additional care in the future.
I can see no justification for disaggregating different elements of the proposal or seeking to separate the individual apartments from the remainder of the scheme…. There is a clear functional relationship between the residential units and the wider assisted living complex and facilities in this case, which are interdependent on one another….All of this leads me to conclude that the proposed development is properly to be considered a C2 Use”
This appeal usefully demonstrates the consideration of use class and the level of information which can be required to demonstrate that extra care units fall within Use Class C2 and that they therefore should not be required to offer affordable housing contributions.
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