Appeal 6002387

The appeal is dismissed.

An application for costs was made by [name] against the Council of the London Borough of Hounslow and is the subject of a separate decision.

The description of development in the banner heading above is taken from the planning application form but I have excluded superfluous information that is not an act of development.

The Council has indicated that there is an ongoing Local Plan review. I am not aware of the exact stage it has reached, the extent of unresolved objections or whether the policies concerned will be considered consistent with the National Planning Policy Framework (the Framework). Consequently, in accordance with Paragraph 48 of the Framework, I give it limited weight.

The main issues are: • the effect of the proposed development on the supply of family housing, including whether the accommodation would meet an identified local need for specialist children’s provision; and • whether, in the absence of a completed legal agreement securing nomination arrangements, the development would provide appropriate safeguards to ensure its intended purpose and to avoid the importation of need from outside the local area.

The appeal site comprises a two-storey, semi-detached property situated at the end of a cul-de-sac of similar residential properties. The existing dwelling has five bedrooms.

The proposal seeks planning permission for the change of use of the appeal property to a children’s care home (Use Class C2). The application documents indicate that it would provide residential accommodation for four children aged between 7 and 17. The children would be looked after by three staff members between 8am and 8pm and two staff members between 8pm and 8am. There would also be a home manger working twice per week between 9am and 5pm. The young people that would be accommodated in the appeal property would have low complex needs. The appellant states that the property would operate as a family-like environment.

Policy SC1 of the Hounslow Local Plan 2015-2030, adopted September 2015 (the HLP) seeks to maximise the supply of housing in the Borough. Whilst Policy SC1 of the HLP does not state, in explicit terms, that the loss of housing units is resisted, it does seek to maximise the supply of housing, thus inferring that to be the case.

[name] accept that the policy is primarily concerned with new housing, the loss of existing family housing would frustrate the policy’s aims and conflict with the Framework insofar as it seeks to boost significantly the supply of housing. Therefore, the Council’s approach is not misconceived and although the appellant states that the proposal would be for a residential use, which would have a similar appearance and function to a family home, it would nonetheless provide a specific type of residential accommodation, not a family dwelling. This is clearly set out in the Use Class Order which distinguishes between C3 and C2 uses, which are typically residential institutions such as care homes.

The appellant has referred to a recent appeal decision1 within the London Borough of Hounslow, which also relates to a care home use. The appellant refers to a number of findings within this decision. However, whilst I acknowledge that this appeal was allowed and the Inspector did not find any specific conflict with Policy SC1 of the HLP, the circumstances of the two cases are not comparable. Furthermore, the appellant refers to other matters found to be acceptable, for example the effect of the proposal on the character of the area. However, this is not a disputed matter in this appeal. Therefore, I find that the appeal decision is not comparable to the appeal proposal and as a result the Council’s findings are not inconsistent with this decision.

The appellant also makes reference to whether or not the proposal constitutes development under Section 55 of the Town and Country Planning Act 1990 (the Act). However, the Inspector’s decision clearly states that the appellant claimed that the proposal did not constitute development as defined under Section 55 of the Act. The Inspector made no finding in relation to this matter, instead setting out that there is a separate mechanism under to establish whether or not a use is lawful. 1 Appeal Ref: APP/F5540/W/25/3360181

I acknowledge the appellant’s comments relating to the conflict with Policy SC1 being the same when the Council initially supported approval of the proposal and questioning why the Council proceeded to negotiate a Section 106 agreement if the loss of a dwelling was unacceptable.

However, the important distinction in this case is that initially there was an identified local need for the specialist type of housing to be provided. This need and associated compliance with Policy SC8 would be balanced against the conflict with Policy SC1 when considering whether or not the proposal was in accordance with the development plan taken as a whole. These policies both relate to the supply of housing and should be read alongside each other and not in isolation. The Council’s position only changed once it was determined that there was no local need for the type of development proposed, which I accept is frustrating for the appellant. Nonetheless, based on the evidence before me, I find that the Council’s reason for refusal, in so far as it relates to conflict with Policy SC1, is not inconsistent nor without substance or evidence.

Paragraph 63 of the Framework requires that the size, type and tenure of housing need for different groups in the community be assessed and reflected in planning policies, this includes looked after children. The appellant states that the appeal proposal would respond to this by providing specialised, small-scale accommodation for looked after children.

Policy SC8 of the HLP reflects this, supporting the provision of appropriate housing to meet the specialist and supported needs of vulnerable local people. This policy expects proposals to be in partnership with the Council, to have nomination arrangements for supported housing agreed with the Council to maximise the utilisation for local residents and to ensure against the importation of need from outside the Borough.

The appellant’s case draws on a substantial body of evidence. This includes correspondence from August 2024 indicating continued demand arising from the limited availability of local homes; information on out-of-borough placements for [name]; national data showing increased reliance on private provision alongside local placement pressures; and reference to a recently approved scheme at [address], which addresses only a small proportion of overall need and does not remove the ongoing demand for small, family-like settings for children with low-complex needs.

In relation to evidence provided at the appeal stage, Paragraph 2.9 of the Council’s Statement of Case, it confirms that the London Borough of Hounslow has a planned capacity of 26 bed spaces for [name], versus a need of 20. This illustrates that there is sufficient capacity and as a result no identified local need for further provision at this time. Furthermore, the Council state that the expect a slight reduction in the overall number of children, together with a significant increase in the complexity of needs.

On the basis that the proposed development would be solely for children with low complex needs, it would not appear to be suitable for meeting these more complex needs identified by the Council. I recognise that need and circumstances can change over time. However, I see no reason to dispute the evidence provided by the Council.

In relation to the number of children placed outside of the Borough, whilst unable to provide specific information on individual cases, the Council has confirmed that there are a number of factors which influence where a child is placed. There is undoubtedly an emphasis on maintaining stability and local connection for the majority of looked after children. However, the Council state that this is not always the most appropriate solution. The Council state that they have sufficient existing and planned capacity to meet future local needs. Furthermore, it is a matter for the Council to determine the most suitable placement for children. Therefore, whilst I have had regard to the data provided, the numbers only tell part of the story and do indicate that I should reach a conclusion contrary to the position of the Council.

I acknowledge that the Council, and the [name] (the CJCT) initially stated that they supported the application, this was set out in their response dated January 2025. A number of months passed, and work commenced on a legal agreement to secure nomination rights for the proposal, I will return to this matter later in my decision. Based on the evidence before me, which includes a detailed ‘Chronology of Events2, the Council worked proactively with the appellant to progress the application towards a positive decision. However, before the application was determined, the CJCT notified the planning officer of their intention to withdraw support for the proposal on the basis that there is no longer an identified local need for the type of development being proposed. This advice, whether accepted by the appellant or not, changed the Council’s assessment of the application.

I acknowledge the appellant’s concerns that data or evidence was not provided despite numerous requests, which did not enable suitable scrutiny or testing. I appreciate that there are some restrictions which govern what and how much data can be shared in order to protect the children and young people being cared for. Furthermore, there is a clear difference of opinion in relation to this proposal. However, based on the evidence before me I am satisfied that the Council provided adequate reasoning to support their position, and I find that there is no substantive evidence before me to disprove the information which has been provided by the Council.

I have had regard to the concerns of the appellant in relation to why the Council’s position fundamentally changed throughout the determination process. However, whilst I acknowledge the appellant’s frustrations, the Council has provided a clear reason for refusal, supported by an [name] and has provided a Statement of Case to further justify their position. Furthermore, I am satisfied that the Council’s position is informed by robust market intelligence, strategic planning, and an evolving sufficiency strategy that prioritises the most appropriate form of care for each child.

The appellant contends that the Council’s change in position following internal commissioning changes indicates that the refusal was influenced by non-planning considerations, which would be immaterial in a planning determination. They rely on R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC

However, that case concerned whether a local authority acted unlawfully by taking into account an off-site financial benefit when deciding whether to exercise compulsory purchase powers, and the [address] held that such an irrelevant factor should not have been considered. The appellant has not demonstrated how 2 Appendix 26 ([name] of Case) the legal principles in this case law, which relate to the scope of lawful considerations in compulsory acquisition decisions, are applicable to the present appeal. I therefore attach limited weight to this.

The appellant states that competition is not a material planning condition, and that planning permission should not be refused on an anti-competition basis. The appellant maintains the position that there is local demand for the proposed development. It is accepted that market demand and competition are not material planning considerations. However, the evidence before me demonstrates that the provision relied upon by the Council includes both public sector and private provision. Furthermore, Policy SC8 clearly requires that proposals demonstrate an identified local need. Importantly, evidence of local need for a particular type of development is not the same as evidence of local demand, and the two should not be conflated. Therefore, whilst I have had regard to the evidence provided by the appellant, I find that it has not been demonstrated that there is a local need for the development proposed.

In the absence of an identified local need, the proposed development would be likely to result in the importation of need from outside the Borough which is contrary to the aims of Policy SC8. There is no substantive evidence before me, that this would not be the case and the appellant’s position with regards to securing nomination rights for the proposal further adds to these concerns. I will return to this matter later in my decision.

My attention has been drawn to an appeal decision3 concerning a property at [address], with the same local authority area, which was allowed. This appeal relates to a proposal to change the use of a residential property (C3) to a care home (C2). However, there are a number of differences between the allowed appeal and this current proposal, namely the proposal was to provide specialist care for adults with severe learning disabilities, and an agreement was in place with the Council to place residents in the proposed home. Accordingly, the Inspector found that there was a need for the proposed development and allowed the appeal. For the above reasons, it is not comparable to the current appeal proposal which has not demonstrated a need for the proposed development.

The appellant states that the existing dwelling could be used for other purposes within the C3 use class, for example as a small care home housing up to six people (C3b) or as a six-person household (C3c). This is not disputed by the Council. However, this is not what has been applied for and therefore, it does not alter my above findings.

Consequently, in the absence of any robust evidence to demonstrate that the proposal accords with the policy requirements set out in Policy SC8, it has not been demonstrated that there is a need for the proposed development which would outweighs the harm caused as a result of the loss of family housing, for which there is an identified need. Thus, it would be contrary to Policies SC1 and SC8 of the HLP which require amongst other things, development to maximise the supply of housing in the Borough and supports the provision of appropriate housing to meet the specialist and supported needs of vulnerable local people. 3 Appeal Ref: APP/F5540/W/25/3360181

Policy SC8(e) of the HLP states that the Council will expect development proposals to have nomination arrangements for [name] and [name] agreed with the Council to maximise the utilisation for local residents, and to ensure against the importation of need from outside the borough.

Policy IMP3(i) of the HLP states that development proposals will be expected to mitigate the impacts of the development on the area through a Section 106 Agreement (S106), where necessary or appropriate, having regard to supplementary planning document.

The appellant states that negotiations in respect of the legal agreement commenced and at no stage did they refuse to enter into such an agreement. The appellant has provided a chronological account of the application and states that the Council’s decision to refuse the application following an agreement to prepare a S106 as null and void. However, whilst I acknowledge that that Council’s position changed from one which supported the proposal, to one which did not support the proposal, they did progress preparation of a S106 agreement and provided Heads of Terms to the appellant. Nonetheless, I do not doubt that had the Council’s position regarding the need for the development remained unchanged, then a S106 agreement would have been completed, with all parties indicting a willingness to enter into an agreement.

Whilst the Council did not proceed with the preparation of the legal agreement once the decision to refuse was taken, this did not preclude the appellant from providing an executed legal agreement. However, I do not have a competed legal agreement before me and the appellant now disputes the necessity, relevance and proportionality of the required agreement. The appellant states that the S106 requirement fails the statutory tests for planning obligations set out in Regulation 122(2) of the Community Infrastructure Levy Regulations 2010, as amended (the CIL Regulations), these three tests are that it is necessary to make the development acceptable in planning terms; directly related to the development and fairly and reasonably related in scale and kind to the development.

In respect of the first test, the appellant states that the agreement is unnecessary as the development involves a minor change of use, generating negligible additional impacts on local infrastructure such as traffic, amenities or services compared to its existing use. However, this is not the purpose of the legal agreement being requested by the LPA, which is to secure the use of the property for local residents and to safeguard against the importation of need form outside of the Borough. It does not seek any form of infrastructure contribution.

The appellant also states that the nomination requirement relates to social care commissioning and resource allocation, rather than land use itself. However, Policy SC8 clearly states that the Council will expect development proposals to have nomination arrangements, and the Council has confirmed that this would be secured by a legal agreement. On this basis I am satisfied that this test is met.

In relation to the second test, the appellant states that a mechanism to prevent the importation of need is unrelated to the physical impacts of the development on land use and that the Council oversteps turning a policy preference into an anti-competition bias that stifles private provision. The appellant states that ‘planning law’ regulates the use of land, not the specific identities or origins of occupant’s post-permission.

However, as outlined above, the requirement is clearly set out in an adopted Local Plan Policy. The requirement relates to the use and occupancy of the appeal property, which is directly related to the development. In such circumstances the use of legal agreements is not uncommon, they are often used to restrict or control occupancy for example in relation to schemes for local occupancy housing, rural workers accommodation or affordable housing, and in particular where local plan policies require certain types of development to meet an identified need.

The appellant argues that Policy IMP3 of the HLP is concerned infrastructure contributions and does not operate as a mechanism for enforcing social care policy. They refer to case law establishing that voluntary community benefit donations offered by developers are not material considerations in planning decisions. [name] (Wright) v Resilient Energy Severndale Ltd and Forest of [name] [2019] UKSC 53, the [address] held that community benefit payments do not pursue a proper planning purpose, do not relate to the use of land, and instead amount to a general inducement to secure planning permission, contrary to the established principle that permission cannot be bought or sold.

However, in this case there is no suggestion that the proposed development would be required to provide any unrelated community benefits. Policy SC8 of the HLP is clear in requiring nomination agreements, which relate directly to the nature and operation of the proposed development. Accordingly, the proposed planning obligation would not be unrelated to planning purposes, nor would it resemble the type of contribution considered in the aforementioned case law.

[name] accept that Policy SC8 does not include an explicit reference to the need for a S106 Agreement, it requires proposals to demonstrate how they meet the Borough’s residents needs and include nomination arrangements to prioritise local residents. I have not been presented with a suitable, alternative mechanism to achieve compliance with this aim. Whilst the appellant has referred to the use of planning conditions, I have not been presented with any further details of how this would be effective. Furthermore, the Council has clearly set out that the absence of a legal agreement the proposed development would be contrary to the Local Plan and there being no material planning considerations to indicate a decision should be taken otherwise in accordance with it.

My attention has been drawn to an appeal decision4 for another care home within Hounslow. This appeal was allowed, without a legal agreement. However, whilst this is not disputed, in this particular case, the appellant had secured a contract with the Council for the placement of six local residents. Therefore, the Inspector concluded that the policy requirements of SC8 had been met. It is not therefore comparable to the appeal proposal.

In relation to the third test, the appellant states that imposing a restriction which could render the home unviable is disproportionate, they make particular reference to limiting referral pools and revenue. They further state that conditions including an operational management plan requiring OFSTED compliant and good neighbour relations would address any concerns. However, no substantive evidence has been provided to demonstrate that a S106 agreement to secure 4 Appeal Ref: APP/F5540/W/25/3360181 nomination rights would render the development unviable. Furthermore, the submitted Heads of Terms clearly sets out the nomination rights afforded to the Council and the timescales after which any vacancy may be advertised to other service providers. It would necessarily not preclude the home being made available to children from outside of the Borough, but it seeks to ensure local need is given first priority. On this basis, I am satisfied that it is and fairly and reasonably related in scale and kind to the development. The conditions suggested by the appellant would not achieve this.

The appellant states that the failure to meet these tests means that the Council cannot lawfully require the S106 agreement and refusal on these grounds is irrational and ultra vires (acting beyond one’s legal power). My attention has been drawn to recent case law5 which the appellant states would support their position in relation to the Council's reversal from preparing a draft S106 to refusal, lacks robust justification, potentially indicating bias toward in-house provisions and potential for judicial review. However, I do not have jurisdiction to deal with whether the Council ‘erred in law’ or acted outside its powers. The proper course for the appellant would have been to challenge the decision by way of judicial review. As such this is not a matter for this appeal.

The appellant has raised concerns regarding the wording of the suggested legal agreement being a clear departure from the previously stated position. I have been provided with an email from the planning officer which appears to state that the legal agreement would require a ‘Hounslow only’ approach. Nonetheless, this is not reflected in the Heads of Terms which were provided to the appellant’s solicitor and a copy has been provided with this appeal. Notwithstanding this, the appellant was content to proceed with the preparation of the legal agreement, and this is rather a moot point in relation to this appeal which disputes the lawful basis for requiring any type of legal agreement to control occupancy and to enable a Hounslow first prioritisation for future occupiers of the proposed development. Furthermore, despite this email, I have no substantive evidence to demonstrate that the approach taken in the Heads of Terms has been changed since the application was being determined.

For the above reasons, I find the required legal agreement would meet the tests set out in the CIL Regulations. Namely, that it is necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the proposed development.

In the absence of a planning obligation or other legal mechanism, I have given consideration as to whether the necessary obligations could instead be secured by way of a planning condition. But in that regard, the Planning Practice Guidance states that in exceptional circumstances a negatively worded condition requiring a planning obligation or other agreement to be entered into before certain development can commence may be appropriate, where there is clear evidence that the delivery of the development would otherwise be at serious risk. No evidence has been provided to demonstrate that the delivery of the development would be at serious risk if a planning condition were not to be used. However, there are no exceptional circumstances and the use of a planning condition to secure the obligations would not be appropriate in this instance. 5 Redrow Homes Ltd v Secretary of State [2023] EWHC 879 (Admin)

Consequently, in the absence of such a legal agreement or any alternative mechanism securing nomination arrangements, the development would not provide appropriate safeguards to ensure its intended purpose and to avoid the importation of need from outside the local area. Thus, the proposed development would be contrary to Policy SC8 and IMP3 of the HLP, which require amongst other things, proposals to have nomination arrangements for [name] and [name] agreed with the Council to maximise the utilisation for local residents, and to ensure against the importation of need from outside the borough. In addition, Policy IMP3 requires that development proposals will be expected to mitigate the impacts of the development on the area through a Section 106 agreement.

For the reasons set out above, the proposed development would conflict with the development plan taken as a whole. There are no material considerations, including the Framework, of sufficient weight which indicate a decision should be made other than in accordance with it. Therefore, the appeal is dismissed.