A reckoning with the ‘C’ classes

It’s time for the government to bring the “C” use classes into line with the types of homes people need, writes Ricardo Gama, an associate at Town Legal LLP Homes are important. The government is now openly – and frequently – admitting that “we haven’t built enough homes”, which is true. But this is only part of the problem. We also haven’t built the right sorts of homes for the right sorts of people. There is not just a shortage of supply but an issue of who is soaking up the supply. Different groups of people need different types of homes and if the wrong types are provided, there is a greater risk that homes will not be occupied, or will not be occupied enough of the time. What do the use classes do? Fixing this problem is a big ask of a piece of secondary planning legislation, but the Town and Country Planning (Use Classes) Order 1987 is hopelessly out of date and out of step with the different ways that people live. There is the ubiquitous use class C3 for “dwellinghouses”, and then different use classes for “residential institutions” (C2) and “houses in multiple occupation” (HMOs) (C4) – though the latter may only have up to six occupants. (I’m leaving aside C1 hotels as they normally capture a different market – although there are interesting issues there too.) Everything else is “sui generis”, which means that it does not fall within any use class and does not benefit from the ability to change uses within a use class without planning permission. The use classes are permissive, not prescriptive; ie they define changes of use that will not engage the planning system as opposed to defining the categories of use that will be permitted to come forward. However, they still have the effect of defining policy and market norms and expectations. Local planning authorities are slow to keep up with developments in the way people live. This is no wonder as in order to assess the planning merits of a new form of residential tenure, they must grapple with untested planning impacts, against national and local policies that are not fit for purpose. Central government has an important role in keeping the use classes up to date so that we at least have a common set of labels. Then apples can be compared with apples, in terms of planning benefits and impacts. A proper assessment of planning merits will allow for a consistent approach to the drafting of rational planning policies. The current residential use classes have failed to do this. C3 and sui generis Focusing only on residential tenures that fall within C3 and the “everything else” sui generis category, there are (as well as others, I’m sure): Vanilla build-for-sale houses and flats (C3); The newish breed of large-scale build-to-rent developments, managed by a single landlord/management entity (C3, but now with their own policy – H13 – in the draft London Plan); Hostels (a sui generis use encompassing an astoundingly wide range of existing buildings and developments with completely different characteristics, which are still governed by the mid-80s case of Panayi v Secretary of State for the Environment [1985] JPL 783; some of these hostels would fall within policy H14 of the draft London Plan); Any HMO with more than six occupants (sui generis and very hard to distinguish in practice from hostels); Specialist older persons housing (C3, as long as it does not become residential nursing accommodation covered by C2 and dealt with by policy H15 of the draft London Plan); Purpose-built student accommodation (sui generis and now covered by draft London Plan policy H17); and Shared living or co-living (sui generis and now covered by draft London Plan policy H18). In addition, the current use classes are expected to accommodate the fact that a certain level of “Airbnb-style” use is bound to happen, sometimes lawfully, but very often not and without any hope of cash-strapped local planning authorities being able to enforce the multitude of planning breaches taking place. Isn’t it time to acknowledge that short lets will take place and tackle them head on with more flexible use classes allowing short lets within defined parameters? Credit is due to the mayor of London, whose draft London Plan contains new policies dealing with many of the above residential tenures (albeit heavy-handedly in some respects, for instance, in not contemplating on-site affordable housing for co-living schemes and in seeking to define extra care housing as falling within use class C2). This is, however, little help for the rest of the country. The government needs to take a proactive role in examining and laying the foundations for new forms of residential occupation. This may take the form of new use classes (for example, for co-living and purpose-built student accommodation), but would probably also include a broadening and clarifying of use class C3, with an explicit statutory set of characteristics, instead of the current tests, which are largely contained in case law. Government action needed The government is currently consulting on its proposed standardised approach for assessing housing need. On 9 February, the Communities and Local Government committee published recommendations following its “Housing for older people” inquiry. As well as proposing the creation of a sub-category in use class C2 or a new use class for “specialist housing” (currently use class C3), in particular to make specialist housing for older people distinguishable from C3 housing in assessing the appropriate level of section 106 contributions, the report recommended that “the new standard approach to assessing housing need explicitly addresses the complex and differing housing needs of older people”. Why not have a similar review of the C classes generally and a methodology for assessing housing need that explicitly deals with the diverse housing needs of the old, the young, the poor, families, young professionals, key workers, new arrivals, old hands, fat cats, and beatniks? This may go too far, but a reckoning with the C classes is a step in the right direction. Pic credit: Cultura/REX/Shutterstock