Casebook: Appeal case - Community facilities - Mental care ruled different from nursing home

A lawful development certificate has been refused for the use of 40 bedrooms at a former nursing home in Yorkshire for the care and treatment of people with personality disorders because it would not comply with a planning condition.

As an NHS hospital, the building had benefited from Crown immunity until 1987. Permission for the nursing home was granted in that year subject to a condition preventing its use for any other purpose in the same use class. The dispute between the parties focused on whether the permission itself was unnecessary. The appellant claimed that if so, the condition could be ignored in accordance with the judgement in Newbury District Council v Secretary of State for the Environment (1981).

The inspector remarked that the Newbury case also identified circumstances where existing use rights might be lost by implementing a later permission, namely where this results in the creation of a new planning unit or a new chapter in the planning history of the site. He took the view that works required by the highway authority were sufficiently significant to constitute a new chapter in the planning history of the site and any existing use rights were lost as a result.

The appellants argued for a common sense approach to what constitutes a "nursing home", a term not defined in planning legislation, identifying the existing use as a home where residents would live and nursing would be provided. On that basis the proposed use would not be materially different, they maintained.

The council suggested that a nursing home is commonly understood to refer to a residential home for elderly people. The recollections of councillors made it clear that this was their understanding when they imposed the condition, the authority argued. It also cited a dictionary definition referring to an institution, especially a small private one, providing health care for the elderly.

The inspector accepted that the proposed use fell within the relevant use class but did not consider it consistent with the common understanding or the dictionary definition of a nursing home. He also felt that it would be a departure from the manner in which the premises had lawfully operated for some 15 years, finding that it would be closer to a hospital use. He concluded that planning permission would be required.

DCS No: 100039369; Inspector: Frank Cherington; Inquiry.

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