R RLT Built Environment Ltd v The Cornwall Council St Ives Town Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2817 (Admin) |
| Docket Number | Case No: CO/2241/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 2016 |
[2016] EWHC 2817 (Admin)
Mr Justice Hickinbottom
Case No: CO/2241/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BRISTOL
Bristol Civil Justice Centre
2 Redcliff Street
Bristol
Charles Banner and Luke Wilcox (instructed by Stephens Scown LLP) for the Claimant
Mark Lowe QC and Jack Parker (instructed by Cornwall Council Legal Services) for the Defendant
The Interested Party neither appearing nor being represented
Hearing date: 6 October 2016
Approved Judgment
Introduction
The Claimant is a company specialising in, amongst other things, residential development design and planning in Cornwall. In this claim, it seeks to challenge the decision dated 17 March 2016 of the Defendant local planning authority ("the Council") to hold a local referendum on the making of the St Ives Neighbourhood Development Plan ("the St Ives NDP").
On 15 June 2016, Supperstone J ordered the claim to be listed for a rolled-up hearing. There were then eight grounds of challenge, including claims that the plan failed to have proper regard to the National Planning Policy Framework ("the NPPF") and did not contribute to sustainable development, both statutory criteria for proceeding to a referendum. However, upon reflection – and, if I might say so, wisely – the Claimant has abandoned all grounds but three. I need say nothing further about the abandoned grounds.
In relation to the extant claims, in short, the Claimant contends that the St Ives NDP includes policies on future housing provision, including in particular residency requirements intended to limit second home ownership in the St Ives area, which are both incompatible with article 8 of the European Convention on Human Rights ("the ECHR") and contrary to the requirements for strategic environmental assessment ("SEA") deriving from European Union law.
At the hearing before me, the Claimant was represented by Charles Banner and Luke Wilcox, and the Council by Mark Lowe QC and Jack Parker. At the outset, I thank each for his contribution.
The Law
The Localism Act 2011 amended the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") and the Town and Country Planning Act 1990 ("the 1990 Act"), by inserting sections 38A-38C into the 2004 Act and several new schedules including Schedule 4B into the 1990 Act. These, supplemented by the Neighbourhood Planning (General) Regulations 2012 (SI 2012 No 637), enable a "qualifying body" to 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". Paragraph 17 of the NPPF, which gives, as one of the guiding principles of the Framework, the empowerment of local people to shape their surroundings, chimes with these statutory provisions.
Paragraph 8(2) of Schedule 4B to the 1990 Act sets out what are described as "basic conditions" for such a plan, of which conditions (d) and (f) are relevant to this claim. Condition (d) requires that:
"(d) the making of the [neighbourhood plan] contributes to the achievement of sustainable development."
Again, the NPPF reflects that requirement: paragraph 6 states that the purpose of the planning system is to contribute to the achievement of sustainable development. That is the overarching aim of national planning policy. Condition (f) requires that:
"(f) the making of the [neighbourhood plan] does not breach, and is otherwise compatible with, EU obligations".
The neighbourhood development plan process includes sequential requirements for independent examination and a local referendum. This claim focuses on the latter. Paragraph 12(4) of Schedule 4B, which applies only after the examiner has made a report, prescribes the circumstances in which a local planning authority may progress a neighbourhood plan to a referendum, in the following terms (so far as relevant to this claim):
"If the authority are satisfied—
(a) that the draft order meets the basic conditions mentioned in paragraph 8(2), [and] is compatible with the Convention rights…, or
(b) that the draft order would meet those conditions, be compatible with those rights and comply with that provision if modifications were made to the draft order (whether or not recommended by the examiner),
a referendum… must be held on the making by the authority of a neighbourhood development order."
In this judgment, bare references to "paragraph 12(4)(a)" are to that sub-paragraph in Schedule 4B. By paragraph 17 of the same schedule, "the Convention rights" has the same meaning as in the Human Rights Act 1998, i.e. the rights conferred by the ECHR.
Therefore, for a draft neighbourhood development plan to progress to a referendum, the relevant local planning authority must be satisfied that, amongst other things, it is compatible with article 8 of the ECHR and with the requirements of EU law, including those of the Strategic Environmental Assessment Directive 2001/42/EC ("the SEA Directive") (as transposed into English law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No 1633) ("the SEA Regulations")), where those requirements are triggered.
The Factual Background
St Ives is a small town on the North Cornwall coast, attractive and well-known as a highly desirable tourist and leisure destination. It is therefore perhaps unsurprising that, with the adjacent Carbis Bay, it has one of the highest proportion of second homes and holiday lets in Cornwall; and the proportion of dwellings occupied other than by a resident household has substantially increased in recent years.
The Interested Party ("the Town Council") is the town council for the area covering the parish of St Ives. Encouraged by the statutory framework, it determined to have a neighbourhood development plan, and gave that indication to the Council as the relevant local planning authority. On 2 December 2013, the parish of St Ives was designated by the Council as a neighbourhood area; and, for the purposes of the Localism Act, the Town Council is the qualifying body for that neighbourhood area.
The Town Council prepared a draft St Ives NDP. It included a Policy H2, designed to address the perceived problem of uncontrolled growth of dwellings used as second or holiday homes, by requiring new open market housing (including replacement housing) to have a restriction to ensure its occupancy as a principal residence, although there was some debate about how "principal residence" should be defined.
Between November 2014 and January 2015, the Town Council undertook pre-submission consultation in respect of that draft, before submitting it to the Council on 5 March 2015. The submission was accompanied by a Sustainability Appraisal of the plan dated March 2015 ("the SA"), which purported to comply with the SEA Directive and Regulations. In respect of alternatives for the use of future market housing in the area, the SA appraised two options: Policy H2, and taking no action (paragraph 11.1.10).
On 26 May 2015, the Council decided that the draft plan complied with the relevant statutory requirements, and should be publicised for consultation, prior to examination. The consultation was conducted in June and July 2015. It had many responses, including comments from the Council's Affordable Housing Team who expressed concern that Policy H2 would depress the value of new market housing to the extent that development of market housing with affordable housing attached would become commercially unattractive. Others were concerned that the policy would depress the tourist and leisure industries in St Ives.
The Council's Planning Policy Advisory Committee ("the PPAC") considered the consultation responses at its meeting on 16 September 2015. It had the benefit of an officer's report, from which it is clear that the requirement for the plan – but, specifically, Policy H2 – to comply with human rights requirements was well-appreciated. In relation to Policy H2, the report said (at pages 67–8):
"The Council must be sure that human rights are not breached by restrictions on the occupation of housing proposed by plan policies. [It then set out the full text of article 8: see paragraph 73 below.]
This Article requires exceptional justification for applying such a principal residence restriction. In the St Ives [NDP], evidence has been presented of the harm that excessive levels of second homes has on the social fabric of the community and that it is therefore contrary to sustainable development. The Council feels that a policy for the restriction of new dwellings to occupation for 'principal residence' may be justified if there is a strong case of the harm caused by second homes, provided that there is an express recognition in the text to demonstrate sensitivity to the human rights issue that could arise when enforcing the restriction.
…
However the policy is expressed, it is a pre-requisite for the Council to consider the issue of human rights in any enforcement action. [The] Council, as the Local Planning Authority, is the authority that determines planning applications and there may be circumstances when it is not appropriate to apply Policy H2, due to other material considerations."
At its 16 September 2015 meeting, the PPAC decided to progress the matter to examination, and an independent examiner, Deborah McCann BSc MRICS MRTPI DipArchCon...
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