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In another useful example of how our development and planning teams work closely with our care and regulatory specialists, Matt Gilks and Nicole Ridgwell shared how a Council’s misunderstanding of the nature of a CQC-regulated substance misuse service required input from both to achieve a successful outcome.
The need for shared planning and care advice has arisen on a number of occasions, from the planning of a new specialist educational needs school to the conversion of a residential property into an Ofsted-compliant children’s home.
In this particular case, an Inner London Council had threatened planning enforcement action against our client on the basis of the Council’s misunderstanding of the character of the use of the building (Class C2 as opposed to Class 3b). The distinction lay in the factors separating the different classifications. As a result, the Council threatened the client with costly and reputationally damaging planning enforcement action within the meaning of section 171A(2) of the Town and Country Planning Act 1990.
The breach of planning control alleged that the building was being used as a formalised residential institution. As those operating within the sector will know, there are various regulated environments for various care needs. Some environments would indeed meet the classification of a residential institution. This service was focused on transitional living, with those who lived there having previously completed long-term treatment.
Differences in planning judgement are not generally amenable to legal challenge by judicial review unless there has been a manifest error of law in respect of the decision maker’s understanding of the correct factual position or legal position, a misinterpretation or misunderstanding of planning policy; a failure to take into account a material consideration; the taking into account of an immaterial consideration; or as a result of wholly irrational decision making.
If the Council could not be persuaded to change course, then the stark choice facing the client would be to concede the Council’s point and apply for planning permission to correct the misconceived breach of planning control or to defend a planning enforcement notice which might have led to a planning enforcement appeal before an Inspector appointed by the Secretary of State. It was, therefore, essential that the legal representations were well-considered and comprehensive, concentrating on the factors relevant to lawful decision-making and the correct interpretation of planning law. In this case, the central point was to lead the Council through a fact specific analysis to assist them to conclude that there was no breach of planning control. The use of the building by the client, supporting each individual’s needs in one household in the community, was perfectly compatible with the planning lawful use of the building as a dwellinghouse.
Unfortunately, the initial scrutiny of the service appeared to have arisen from a misguided prejudice against the service based on its client group. Therefore, the liaison with the Council in question needed to combine the dual roles of comprehensively rebutting the Council’s decision-making process and sensitively explaining our client’s aims as a CQC-regulated substance misuse service. Without the latter, a decision-maker unfamiliar with the sector may base their ultimate decision on a biased understanding and escalate the enforcement action against our client, which would have placed our client in a more difficult, costly position.
Matt and Nicole worked together with the client to contextualise the purpose and nature of the client’s service and how this differed from the Council’s initial interpretation. The final representations provided details of the context of the care and support provided to the client group (whilst also avoiding any unintentional CQC/ regulatory implications of setting out this detail), including explaining the importance to the service and the client group of the long-term continuum of care within a safe and community-focused environment.
