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The site is currently being used as offices; can I make use of the office-to-residential permitted development right? After all, it is just a collection of independent flats, that just happen to be occupied by only the elderly.

Whilst some senior living developments are classified as a C3 use class, this is not the case for all senior living developments and so it should not be assumed that the developer will be able to make use of the office-to-residential permitted development right.

The use classification will depend on the senior living model. The Ministry of Housing, Communities & Local Government guidance includes a helpful summary of four types of specialist housing for older people :

  1. Age-restricted general market housing: This type of housing is generally for people aged 55 and over and the active elderly. It may include some shared amenities such as communal gardens, but does not include support or care services.
  2. Retirement living or sheltered housing: This usually consists of purpose-built flats or bungalows with limited communal facilities such as a lounge, laundry room and guest room. It does not generally provide care services, but provides some support to enable residents to live independently. This can include 24 hour on-site assistance (alarm) and a warden or house manager.
  3. Extra care housing or housing-with-care: This usually consists of purpose-built or adapted flats or bungalows with a medium to high level of care available if required, through an onsite care agency registered through the Care Quality Commission (CQC). Residents are able to live independently with 24 hour access to support services and staff, and meals are also available. There are often extensive communal areas, such as space to socialise or a wellbeing centre. In some cases, these developments are known as retirement communities or villages - the intention is for residents to benefit from varying levels of care as time progresses.
  4. Residential care homes and nursing homes: These have individual rooms within a residential building and provide a high level of care meeting all activities of daily living. They do not usually include support services for independent living. This type of housing can also include dementia care homes.

The models referred to at (1) and (2) will typically have a C3 planning (residential) use, whilst the models referred to at (3) and (4) will typically have a C2 planning use and are distinguished from the first two models mainly due to the larger amenity areas that allow greater levels of service and care facilities to be provided to the residents. The list above is not exhaustive and some senior living models may not fall neatly into one of the models set out in the list. The key point here is that before applying for planning for a proposed senior living development, a number of factors will need to considered to establish which use class the development falls into, in particular the level of care, the extent of amenity areas and the management of the development. A planning consultant should be appointed by the developer to assist with this assessment.

There is, however, a risk that a local authority, following review of the planning application, does not agree with the planning consultant's assessment of the appropriate use class. For example, there have been some cases where, in a planning application for a C2 development, insufficient details of how the developer proposes to provide care to residents and assess their individual care needs has resulted in the local planning authority refusing the application. It is therefore important, where seeking planning for a C2 development, to be able to demonstrate sufficient details of the care services to be provided to the residents; this can, however, be difficult at the application stage. Cushman and Wakefield and the British Property Foundation recommend (in their recent report on Housing and Care for Older People ) that local government should give more clarity on how the physical format of the accommodation and the relationship between that accommodation and available care affect their planning decisions, which would then help planning consultants and developers to satisfy the criteria for the C2 use class and avoid delay to the application. Whether this recommendation is taken on board by local government remains to be seen.

A further implication of the use class classification to note is that local authorities will often apply different policies to different use classes. For example, a local authority might impose an affordable housing requirement and CIL payments for a C3 development but not for a C2 development. For each development, the relevant local authority's policies must be considered to establish what the affordable housing and CIL requirements are, as these can affect the viability of a development. A planning consultant would be able to advise on what the local authority requirements would be for the development in question.

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