Introduction

The case of Alastair MacIntyre and Others against the Scottish Ministers ([2021] CSIH 10) presents a pivotal examination of the application of Use Classes under the Town and Country Planning (Use Classes) (Scotland) Order 1997. This statutory appeal, adjudicated by the Scottish Court of Session, scrutinizes whether converting a residential property into accommodation for up to four looked-after children with 24-hour non-resident care falls within Use Class No. 9 (Houses) or should be reclassified under Use Class No. 8 (Residential Institutions).

The appellants, neighboring residents, challenged the initial refusal by Stirling Council to grant a certificate of lawfulness for the proposed development by the Church of Scotland. The subsequent approval by the Scottish Ministers was further contested, leading to a comprehensive judicial review.

Summary of the Judgment

The Court upheld the reporter's decision to grant the certificate, determining that the proposed use of Drumbrock House falls within Use Class 9. The key consideration was whether the presence of non-resident carers constituted a material change of use, thereby necessitating reclassification to Use Class 8. The Court found that the carers, who would not reside permanently in the property, did not transform the household into a residential institution. Consequently, the property's use as a dwelling house by the children, supplemented by external care, remained within the ambit of Use Class 9.

Analysis

Precedents Cited

The judgment references several key cases that influence the interpretation of Use Classes:

• North Devon District Council v First Secretary of State [2004]: Addressed the definition of a household in residential contexts.
• R (on the application of Crawley Borough Council) v Secretary of State for Transport and the Regions, Eve Helberg [2004]: Discussed the nuances in defining households in planning decisions.
• R (on the application of Hossack) v Kettering Borough Council [2002]: Explored the extent to which carers are considered residents in planning classifications.

These precedents underscore the court's approach to discerning whether individuals associated with a property qualify as part of a single household or as residents in an institutional setting, thereby influencing the classification under Use Classes.

Legal Reasoning

The Court's legal reasoning hinged on the interpretation of the term "residents" within Use Class 9. The pivotal question was whether non-resident carers should be classified as residents, thereby altering the Use Class. The Court meticulously analyzed the statutory language, distinguishing between the Scottish and English provisions. It emphasized that, under the Scottish Order, "single household" is not a stipulated criterion, contrary to the English Order where it plays a central role.

The reporter's judgment was found to align correctly with the statutory provisions, as the carers' non-resident status did not constitute a material change of use. The presence of carers on a shift basis, without permanent residency, maintained the property's classification under Use Class 9.

Impact

This judgment carries significant implications for future residential planning cases in Scotland:

• Clarification of Use Classes: Establishes a clearer boundary between Use Class 9 and Use Class 8, particularly concerning the presence of non-resident care providers.
• Guidance for Care Facilities: Provides a framework for small residential care homes to understand how their operations may be classified, promoting compliance with planning regulations.
• Planning Authority Decisions: Reinforces the necessity for planning authorities to base their decisions on statutory language rather than supplementary guidance, ensuring consistency and legal accuracy.

By distinguishing the Scottish provisions from their English counterparts, the judgment fosters a more nuanced application of planning laws within Scotland, potentially reducing ambiguities in similar future cases.

Complex Concepts Simplified

Use Class 9 vs. Use Class 8

Use Class 9 (Houses): Pertains to the use of buildings or land as a house by individuals living together as a family or household. It allows for lawful use as long as the number of residents does not exceed the specified limit (not more than five residents, including those requiring care).

Use Class 8 (Residential Institutions): Applies to properties used for the provision of residential accommodation and care for individuals needing support, such as small residential care homes, nursing homes, or residential schools. This classification is invoked when the nature of the use changes from a private household to an institutional setting.

Certificate of Lawfulness

A Certificate of Lawfulness is an official document issued by the planning authority confirming that a proposed use or development is lawful under planning laws. Obtaining this certificate prevents enforcement action from being taken against lawful uses.

Material Change of Use

A material change of use refers to an alteration in the use of land or buildings that affects their classification under planning laws. Such changes may require reclassification under different Use Classes, thereby necessitating new planning permissions.

Conclusion

The judgment in Alastair MacIntyre and Others against the Scottish Ministers serves as a critical reference point in the interpretation of Use Classes within Scottish planning law. By affirming that non-resident carers do not transform a household into a residential institution under Use Class 9, the Court has provided clarity on the classification of small residential care arrangements. This decision not only upholds the statutory language of the Use Classes Order but also delineates the boundaries between household and institutional classifications, ensuring that future planning decisions can be made with greater legal certainty and precision.