High Court Finds That C2 Extra Care Scheme Not Exempt From Affordable Housing Requirements

• Published date: 25 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Charles Russell Speechlys LLP
• Author: Lydia O'Hagan

The recent decision of the High Court in Rectory Homes Limited v SSHCLG and South Oxfordshire District Council [2020] EWHC 2098 (Admin) highlights that extra care developments within Use Class C2 are not exempt from providing affordable housing solely by virtue of falling within that use class - whether or not affordable housing is required will depend on the wording of the relevant development plan policy relating to a site.

The current Town and Country Planning (Use Classes) Order 1987 defines Use Class C2 as including use for the provision of residential accommodation and care to people in need of care (provided the use does not fall within Use Class C3) and nursing homes. Use Class C3 includes use as a dwelling by a single person or a family or by not more than 6 residents living together as a single household, including where care is provided (these Use Classes are unchanged by the recent amendments). Sometimes local authorities apply different policies to development within Use Classes C2 and C3 - in particular a quantum of affordable housing may be required for Use Class C3 schemes, but not care homes - whether or not affordable housing is required for a particular type of retirement living scheme may depend on the exact wording of the policies. In this case, the Council's affordable housing policy CSH3 provided that "40% affordable housing will be sought on all sites where there is a net gain of three or more dwellings subject to the viability of provision on each site". The policy makes no reference to the Use Classes Order.

On appeal, the inspector had followed the decision of the Council and refused planning permission for a "Housing with Care" development (Use Class C2) for 78 open market extra care dwellings and a communal residents centre, finding that the failure to provide a sufficient number of affordable homes as part of the scheme would cause "very substantial harm".

Rectory Homes lodged a section 288 challenge at the High Court, arguing that the requirement to provide affordable housing was not triggered because the use...