Property law reports

Town and country planning: Change of use

Use classes - single household - Property used as temporary accommodation for young people - council deciding that residents living together as single household - judge finding no sufficient relationship between residents - whether necessary for residents to have relationship beyond common need for accommodation and support - article 3(6)(i) and class C3 of Town and Country Planning (Use Classes) Order 1987 - appeal allowed

R (on the application of Hossack) v Kettering Borough Council and another: CA: Lords Justice Simon Brown, Robert Walker and Clarke: 25 June 2002

The respondent lived next door to three adjoined terraced houses, used by a housing group to provide temporary accommodation for young homeless people, in an area for which the appellant council was the local planning authority.

The housing group had total management control of the properties, including selecting the residents, allocating rooms to them, and deciding how long they should stay.

The lawful use of each of the properties fell within class C3 of the Town and Country Planning (Use Classes) Order 1987, namely: 'Use as a dwelling house...

by not more than six residents living together as a single household'.

Use as a hostel was excluded from that class by article 3(6)(i) of the 1987 order.

Each of the group's properties housed no more than five residents.

There was no internal access between the buildings.

The residents within each property shared cooking, food-storage and dining facilities, and had locks to their bedroom doors.

The respondent repeatedly complained to the council that the use of the property did not fall within class C3.

She claimed that there had been a material change of use, to use as a hostel; but, following an investigation, the council concluded that the properties remained in class C3.

The decision was overturned by a judge in judicial review proceedings brought by the respondent.

The judge found that there had been a change of use, because the residents did not form a single household, since there was no relationship between them that provided a particular reason for their living in the same house, but merely a common need for accommodation, support and resettlement; and the use of the properties had all the characteristics of a hostel: the provision of relatively short-stay, inexpensive sleeping accommodation, and shared communal facilities.

The council appealed.

Simon Bird (instructed by the solicitor to Kettering Borough Council) for the appellants; Hannah Markham (instructed by Wood Shawe & Co) for the respondent.

Held: The appeal was allowed.

The judge had gone too far in taking the view that there had to be a relationship between residents, beyond their common need for accommodation and support, before they could constitute a single household.

The fact that class C3 was restricted to households of not more than six residents was highly relevant.

The very fact of having a maximum of six residents made it more likely that they were a single household: the smaller the number of occupants, the more intimate, integrated and cohesive their occupancy was likely to be.

The authorities did not go so far as to suggest that residents coming to the house neither as a preformed group nor for a predetermined period could never be a single household, or that homogeneity was a necessary precondition: Simmons v Pizzey [1979] AC 37, Barnes v Sheffield City Council (1995) 27 HLR 719 and Rogers v Islington London Borough Council [1999] 3 EGLR 17, considered.

The precise nature of the relationship between the residents was a material consideration in each case.

The council had overlooked it, and would need to re-decide all the issues in the case in the light of the present judgment.

Occupier's liability: Duty of care

Occupier's liability - standard of care - users of path on land occupied by appellants frequently taking short cuts across corner of right-angled turn - respondent tripping - judge finding appellants liable - whether appellants discharging duty of care - whether judge entitled to make certain findings of fact - appeal dismissed

Peskett v Portsmouth City Council: CA: Lords Justice Pill and Potter: 25 June 2002

The appellant council occupied an office building accessed by flagged/tarmacked paths.

At one point, two paths intersected, creating a right-angled turn.

Users of the path tended to cut across the corner of the turn, over a grassed area.

The grass and soil had worn away, and a small depression had developed, which created a drop or 'lip' of three or four inches between the path and the adjacent ground.

The respondent, who worked in the building, used the path frequently.

She tripped over the lip while using the short cut and injured herself.

The council took steps to avoid further accidents by laying additional flags across the diagonal of the corner.

The respondent brought a claim against the council, as occupier of the land, for breach of its duty of care towards her.

The council accepted that members of the public habitually took short cuts across the grass, and that there was a potential trip hazard.

However, it pointed out that the path itself was perfectly safe, and that there had been no previous accidents on, or complaints about, the grass.

The judge allowed the claim, and made a 50% finding of contributory negligence by the respondent.

He noted that the path was narrow, and that the turn, before the additional flags were added, had been awkward.

The council appealed.

It contended, in the alternative, that a 75% contributory negligence finding was more appropriate.

It submitted, among other things, that the judge had imposed too high a standard of care, which effectively fixed upon landowners a duty to guarantee visitors' safety; and that he should not have taken into account any narrowness or awkwardness of the path when those matters had not been raised before him, the path being, in any event, perfectly normal.

Hugh Hamill (instructed by the solicitor to Portsmouth City Council) for the appellants; Lincoln Brookes (instructed by Larcomes) for the respondent.

Held: The appeal was dismissed.

The judge had been entitled to find that the council had breached its duty of care by failing to take such care as was reasonable in all the circumstances to ensure that its visitors were reasonably safe.

The relevant factors included: the presence of a patent trip hazard immediately adjacent to the path; the heavy usage of the path, making it foreseeable that people would cut the corner when the path was crowded; the appellants' actual knowledge of use of the short cut; and the ease with which the danger could be averted.

Although there had been no previous accidents, the appellants had not been entitled to assume that everyone using the short cut would always succeed in averting the danger that was known to exist.

Although no submissions were made to the judge about the narrowness or awkwardness of the path, its nature was apparent from photographic evidence.

The judge had been entitled to take into account all the evidence before him when making his findings of fact.

There was no cause for concern about the wider implications of the judge's decision, since, like other cases of that type, it fell for determination upon its own particular facts and established no precedent.

Moreover, there was no basis for interfering with the judge's assessment as to the degree of contributory negligence.