The Planning Court’s rejection of a challenge to a neighbourhood development plan’s restriction on second homes in R (on the application of RLT Built Environment Ltd) v Cornwall Council  EWHC 2817 (Admin) is examined by Jack Parker, of Cornerstone Barristers.
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The Planning Court refused the claimant housing developer’s application for judicial review of the defendant local planning authority’s decision to hold a referendum on whether to adopt a neighbourhood development plan. The court rejected the claimant’s case that the statutory criteria for a referendum had not been met because the plan’s policy on limiting second home ownership in the area was both incompatible with article 8 of the European Convention on Human Rights (ECHR) and contrary to the requirements for strategic environmental assessment (SEA) deriving from European Union law.
What is the significance of the decision for authorities and developers?
What is the statutory background to the case?
Neighbourhood development plans
By sections 38A–38C of the Planning and Compulsory Purchase Act 2004 (PCPA 2004) and Schedule 4B to the Town and Country Planning Act 1990 (TCPA 1990), supplemented by the Neighbourhood Planning (General) Regulations 2012, SI 2012/637, a qualifying body may initiate a process for the purpose of requiring a local planning authority to make a neighbourhood development plan, setting out policies in relation to the development and use of land in a particular neighbourhood area. The neighbourhood development plan forms part of the development plan for a particular area and, pursuant to PCPA 2004, s 38(6), applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
The basic conditions for a neighbourhood development plan
TCPA 1990, Sch 4B, para 8(2) sets out what are described as basic conditions for such a plan. In this case, the following conditions were relevant: TCPA 1990, Sch 4B, para 8(2)(d), which requires that the making of the neighbourhood plan contributes to the achievement of sustainable development; and TCPA 1990, Sch 4B, para 8(2)(f), which requires that the making of the neighbourhood plan does not breach, and is otherwise compatible with, EU obligations.
Criteria for a referendum on a neighbourhood development plan
By TCPA 1990, Sch 4B, para 12(4), which applies only after an independent examiner has made a report into the draft plan, a local planning authority may progress a neighbourhood plan to a referendum if it is satisfied that the draft order meets the basic conditions mentioned in TCPA 1990, Sch 4B, para 8(2) and is compatible with the Convention rights.
Thus before any referendum is held, the local planning authority must be satisfied that, among other things, the plan is compatible with ECHR, art 8 and with the Environmental Assessment Directive 2001/42/EC (SEA Directive).
The SEA Directive, which was transposed into English law by the Environmental Assessment of Plans and Programmes Regulations 2004, SI 2004/1633 (EAPPR 2004), requires a local planning authority to assess the potential environmental effects of a particular plan before its adoption. EAPPR 2004, reg 12(2) requires an authority to prepare an environmental report which identifies, describes and evaluates not only the likely significant effects on the environment of implementing the plan, but also any reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
What is the factual background to the case?
St Ives, with the adjacent Carbis Bay, has one of the highest proportions of second homes and holiday lets in Cornwall. That proportion has substantially increased in recent years.
The town council, which was a qualifying body, drafted a neighbourhood development plan which included policies designed to restrict the uncontrolled growth of dwellings used as second or holiday homes. Policy H2 required new open market housing, including replacement housing, to have a restriction to ensure it was used as a principal residence.
Following an independent examination, which found that the basic conditions under TCPA 1990, Sch 4B, para 8(2) were fulfilled, the defendant allowed the plan to proceed to a referendum. On a 47% turnout, 83% of electors voted in favour of adopting the plan.
What were the main issues before the court and why did it dismiss the challenge?
The claimant argued that there had been inadequate consideration of reasonable alternatives to the plan’s policies, contrary to the SEA Directive, and that the principal residence requirement would amount to an unjustified interference with the right under ECHR, art 8 to respect for the home which would be enjoyed by future occupiers of dwellings subject to the restriction.
In relation to the SEA Directive, the claimant argued that increasing the amount of available market housing for local people to buy was a reasonable alternative to the principal residence requirement and should have been assessed. The court, noting that the SEA Directive did not require the assessment of obvious non-starters, rejected that suggestion because the objective of the policy was not merely to make more housing available to local people but rather to reduce the proportion of second homes in St Ives.
As for ECHR, art 8, although it was theoretically possible to envisage circumstances in which the rights of a future occupier of a dwelling subject to the principal residence requirement might be interfered with (for example, if an unforeseen change of circumstances required an occupier to move away from St Ives), this did not mean that the policies themselves breached, or arguably even engaged, ECHR, art 8. Any interference with the rights of an occupier would be in pursuit of a legitimate public interest, namely the interests of the economic well-being of the country and for the protection of the rights and freedoms of others, and the policy was sufficiently precise to enable those purchasing dwellings subject to the principal residence requirement to know where they stood. The planning regime as a whole (including in particular the need for the defendant to consider whether it would be expedient to take enforcement action and the possibility of an appeal against any enforcement notice) was sufficient to safeguard the rights of any future occupiers under ECHR, art 8.
Jack Parker appeared with Mark Lowe QC for the defendant local authority in this case. Interviewed by Robert Matthews. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.