How the planning system is differentiating between types of older people's housing

Observers say councils and inspectors are inconsistent in their approach to extra care retirement housing, sometimes treating it as regular housing and other times as care homes.

An artist's impression of plans for the redevelopment of Heythrop College in Kensington and Chelsea. Image: Westbourne Capital Partners
An artist's impression of plans for the redevelopment of Heythrop College in Kensington and Chelsea. Image: Westbourne Capital Partners

Last month, a House of Lords committee report on intergenerational fairness recommended changes to the planning system to encourage the building of more dedicated housing for older people. As part of this, the committee recommended the government change planning guidance to make clear that ‘extra care’ retirement homes, which provide residents with independent living but also provide varying degrees of care, dependent on need, are treated the same, in planning terms, as care homes. A report from the Centre for Policy Studies and Damian Green MP, Fixing the Care Crisis, followed a week later and made similar recommendations.

At the heart of the matter is the distinction in the use class order between C2, which covers residential institutions including care homes, and C3, which covers mainstream residential. The problem, commentators say, is that planning authorities can be inconsistent on whether extra care facilities should be regarded for planning purposes as C2 or C3 developments. While the latter are eligible for affordable housing and other section 106 planning gain contributions, C2 housing is not.

The issue was illustrated in a decision last week that saw plans for luxury retirement homes in west London refused by London mayor Sadiq Khan after Greater London Authority (GLA) planners disagreed with the local authority over what use class the development should fall under. The mayor has ordered the Royal Borough of Kensington and Chelsea to refuse planning permission, after GLA officers advised that the proposal, which included 142 specialist extra care dwellings, fell within the C3 residential use class and was therefore required to meet the London Plan’s affordable housing policies. Kensington and Chelsea councillors had approved the application after officers advised that the scheme "clearly" fell within the C2 nursing home use class based on the proposed level of care to be provided for residents.

Observers say some authorities suspect that developers want a C2 designation in order to dodge planning gain contributions. Carl Dyer, partner at Irwin Mitchell, said: "There has been a tension there between the genuine care home developers and some cowboy developers who are calling retirement living a care home when it isn’t." John Montgomery, principal practitioner at planning consultancy Tanner & Tilley who specialises in the care sector, added: "We deal with local authorities all around the country and no two authorities are the same. It’s not helped by the fact that there are sometimes inconsistencies between appeal decisions, where inspectors are taking differing views."

A further complication is that residents of new extra care developments may not need care when they move in. Rather, they choose to move to such places on the expectation they will need care at some point. Philip Schmid, director at consultancy JLL, said: "The reality if you go around these schemes is that they are occupied by older people; people who will have increasing need for services and amenity."

Practioners say that, for the most part, inspectors are happy to allow extra care developments to be classified as C2 provided a sufficient level of care is provided. A January 2018 appeal decision regarding The Knowle development in Sidmouth, Devon (DCS reference: 200-007-244), is typical. There, the inspector concluded: "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."

In September 2007, an appeal decision on the Tiddington Fields development on the outskirts of Stratford-upon-Avon (DCS reference: 100-050-263) came to a similar conclusion. Mongomery said: "The planning inspector accepted that 1.5 hours of personal care per week was sufficient for the development to be regarded as C2, but there have been some inspectors that have taken a contrary view. It just emphasises the need for clarity."

Certainly, the House of Lords committee came to the conclusion that extra care facilities should be clearly defined as falling into the C2 use class. "Government should issue guidance clarifying that extra care communities fall within the C2 use class as they are capable of delivering high levels of care for older people and should be treated as the same planning use as care homes," it said.

Nicky Linihan, spokeswoman for local authority body the Planning Officers Society, said appeal decisions have shown that specialist housing for older people’s use class "is a matter of fact and degree based on the design of individual schemes". "This can give the impression that local authorities and inspectors are not taking a consistent approach but that’s not the case," she said. "Notwithstanding this, there’s a real need for affordable homes of all types and we should explore how this sector can play its part."

To add further complexity to the issue, the draft New London Plan states that any dwelling where a resident has their own front door should be classified as C3. According to Dyer, this does not reflect reality. Many care homes, he said, provide residents with their own front door to provide as much privacy as possible, but that does not mean they don’t receive care. Gary Day, group land and planning director at retirement specialist housebuilder McCarthy & Stone, said the draft plan risks rendering retirement development in the capital unviable. "If the mayor is to meet the housing needs of older people his approach to planning needs to change quickly," he said. "He currently risks completely halting the development of new retirement communities."

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