Comment
Draft London Plan and specialist older persons housing: The use class debate continues
Last week, the Mayor published the Draft London Plan – Consolidated Suggested Changes Version July 2019.
This version has been prepared for the Draft New London Plan Examination in Public (EiP) Panel by the Mayor and includes drafted proposed modifications. These reflect consideration of matters that arose from the EiP sessions held earlier this year.
The EiP Panel’s report is expected to be submitted to the Mayor in September. The ‘Consolidated’ Draft London Plan therefore provides a reasonable indication of the settled London Plan, and certainly gives clarity on the Mayor’s intended stance.
Policy H15: Specialist older persons housing, in particular, is expected to remain a substantive point of contention, with the Mayor’s position now set within the ‘Consolidated’ Draft London Plan jarring with the views of industry during the EIP sessions.
Stepping back, the Mayor’s position within the ‘Submission’ Draft London Plan (2018) proposed restricting classification of Use Class C2 to only care and nursing home institutions. Products within the sector including ‘extra-care’ and ‘sheltered accommodation’ would have been firmly allocated to Use Class C3, and subject to all general housing policies within the ‘Consolidated’ Draft London Plan, irrespective of scheme specific matters such as layout, scale and the nature of care being provided therein.
As a result, with the exception of C2 Use Class care and nursing homes, all products would be subject to Policy H5: Delivering affordable housing, in accordance with Policy H6: Threshold approach to applications, in addition to Community Infrastructure Levy (CIL) liability at the prevailing rates set within the MCIL2 Charging Schedule (in force since April 2019).
The debate regarding whether specific retirement and care products should be defined as either Use Class C2 or C3, and hence whether Local Plan affordable housing policies should apply, is well-rehearsed. Yet, there is considerable variability in treatment of applications spatially by Local Authorities. Recent Appeal Decisions by the Planning Inspectorate have fallen either way, and little clarity has previously been provided nationally by the Government.
However, the Government published the Planning Practice Guidance (PPG) on Housing for older and disabled people on 26 June 2019.
The PPG acknowledges the debate and is clear that a wide range of housing is required to meet the needs of older people. It suggested that components of specific schemes, such as level of care and scale of communal facilities provided, can provide a guide as to whether Local Authorities should classify a development in to either Use Class C2 or Use Class C3, or indeed Sui Generis when brought forward for determination via a planning application.
However, this is far from unequivocal and PPG leaves substantive room for professional interpretation in its application. Key questions remain, notably in respect of thresholds for the ‘tests’ in PPG and methodology for quantification or drawing conclusion. Thus, can Local Authorities and applicants be confident in defining the use classes of different retirement and care products being brought forward by utilising PPG alone? The answer, probably not.
Interestingly, the Mayor’s revised Policy H15 within the ‘Consolidated’ Draft London Plan, published shortly after the updated PPG, has taken a similar, more granular approach.
The Mayor’s modified Policy H15 now excludes the binary allocation of extra care and sheltered accommodation in to Use Class C3, and care and nursing homes in to Use Class C2. This is replaced by a series of criteria (labelled ‘attributes’), with thresholds to be met in order for a proposed development to ‘qualify’ as either a care home or ‘specialist older persons housing’.
The newly introduced criteria include requirements underpinned by the likely requirement for Care Quality Commission (CQC) regulated activity for personal and/or nursing care.
Reference to delineation by Use Class is absent within revised Policy 15 and, consequently, the debate is side-stepped. Nevertheless, it is straightforward to deduce that the Mayor is stating that all development falling short of the criteria set by this policy must abide by the general housing policies of the ‘Consolidated’ Draft London Plan; therefore by default defining all such development as Use Class C3.
In summary, whilst a step forward in its latest iteration, there remains a disparity between Policy H15 of the ‘Consolidated’ Draft London Plan and PPG, most notably in respect of professional interpretation regarding the specific attributes for determining whether a proposed later living product represents ‘general housing’ or qualifies as C2 Use Class, thereby securing exemption.
The greater flexibility introduced within Policy H15 will no doubt be considered beneficial to developers and operators within the later living sector, which has long challenged the appropriateness and propensity of C2 Use Class development to meet affordable housing requirements on grounds of financial viability.
However, it is unclear just how stringently the ‘criteria’ will be applied in practice in determining applications, and thereafter restrictively or otherwise during operation. Equally, there is also uncertainty regarding whether such criteria could result in operational management challenges, for example the requirement to provide residents with “choice as to who provides their personal care” within specialist older persons housing.
Further clarity in national planning guidance from the Government on this matter would undoubtedly be beneficial in order to align what will otherwise remain variant stances from Local Authorities across the country.
For more information, please contact Catriona Fraser or Matthew Spilsbury.
22 July 2019