QUEEN'S BENCH DIVISION
PLANNING COURT IN BRISTOL
2 Redcliff Street
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
RLT BUILT ENVIRONMENT LIMITED
|- and -
THE CORNWALL COUNCIL
|- and -
ST IVES TOWN COUNCIL
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
Crown Copyright ©
Mr Justice Hickinbottom:
"(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".
"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.
The Factual Background
"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."
i) The St Ives NDP had been prepared in accordance with all statutory requirements (Section 5, Conclusion 1).
ii) The plans and policies in the St Ives NDP would contribute to achieving sustainable development (Section 5, Conclusion 5); and, specifically, that, "due to the adverse impact on the local community/economy of the uncontrolled growth of second homes the restriction of further second homes [found in Policy H2] does in fact contribute to delivering sustainable development" (Section 4, paragraph 11.5, page 30).
iii) The SA met EU obligations in respect of SEA (Section 5, Conclusion 4)
"I do not consider that the Policy H2 is incompatible with the Human Rights Act 1998. Just as for the restrictions placed on agricultural occupancy or affordable housing it can be argued in the case of St Ives that it is in the interests of the economic well-being of St Ives and does protect the rights and freedoms of others who are currently being affected by the unrestricted occupancy of houses as second homes. In addition, it only applies to new housing development therefore not placing a restriction on the entire housing market.
The plan and its supporting documentation does give clear and rational reasons for including Policy H2 (including supporting evidence). When considering the policy as presented I was mindful of this rationale and evidence and questioned it at length during the clarification meeting. I was satisfied that the policy – subject to the modifications suggested – is appropriate. I made clear in my comment on the policy my rationale for its inclusion – subject to modification.
I set out a clear rationale of why I considered that Policy H2 as modified would be consistent with the NPPF."
"It is questionable whether [article 8] is in play where the restriction is imposed, as here, only on newly constructed accommodation so that those who subsequently purchase or occupy the homes subject to the restriction are aware of the restriction from the outset. However, it is prudent to assess the applicability of Article 8 from the outset of the creation of the policy since it may be invoked by those adversely affected in the case of enforcement for a breach of the restriction. In any event, the Council will need to be alert to the potential for the existence of such issues when exercising its discretion to take enforcement action on the breach of any such restriction.
Article 8 requires that the restriction be justified in terms of necessity and proportionality. 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 which harm will continue unabated if no such restriction is imposed to prevent the use and occupation of new homes by the second home and holiday home market and that it is therefore contrary to sustainable development. This conclusion was accepted by the Examiner. Your officers are of the view that members are entitled to conclude on the evidence base of the NDP that the policy is a necessary and proportionate response to a particular local issue of some significance to those living in the area of the Plan.
… [I]t is open for the Council to take the view that it is unlikely that article 8 will be engaged in this context, but if it is, the interference is or could be justified as set out below.
[The substantive provisions of article 8(2) are then set out.]
The policy is promoted for the social and economic well-being of the area as set out in the NDP and report of the Examiner. That is for the economic and social well-being of the area in which it applies rather than for well-being nationwide. Thus, in context, it can be said to relate to the economic well-being of that part of the country in which it will apply. In any event, it also applies to the protection of the rights and freedoms of others to own and occupy their own homes in the area and who are presently prevented from doing so by the strong second and holiday home market."
The officer's report also stressed that, under the 1990 Act, enforcement action can only be taken if the relevant planning authority find it expedient to do so; and, at that stage, the Council would be obliged to take into account all material considerations including any article 8 rights, and that enforcement could not proceed if it would be a breach of article 8.
"Do you want [the Council] to use the neighbourhood plan for St Ives to help decide planning applications in the neighbourhood area?"
On a 47% turnout, 83% of those who voted were in favour of the proposition.
The St Ives NDP: The Challenged Policies
"H2 Principal Residence Requirement
Due to the impact upon the local housing market of the continued uncontrolled growth of dwellings used for holiday accommodation (as second or holiday homes) new open market housing, excluding replacement dwellings, will only be supported where there is a restriction to ensure its occupancy as a Principal Residence.
Sufficient guarantee must be provided of such occupancy restriction through the imposition of a planning condition or legal agreement. New unrestricted second homes will not be supported at any time.
Principal Residences are defined as those occupied as the residents' sole or main residence, where the residents spend the majority of their time when not working away from home.
The condition or obligation on new open market homes will require that they are occupied only as the primary (principal) residence of those persons entitled to occupy them. Occupiers of homes with a Principal Residence condition will be required to keep proof that they are meeting the obligation or condition, and be obliged to provide this proof if/when [the] Council requests this information. Proof of Principal Residence is via verifiable evidence which could include, for example (but not limited to) residents being registered on the local electoral register and being registered for and attending local services (such as healthcare, schools etc)."
To safeguard the sustainability of the settlements in the St Ives NDP area, whose communities are being eroded through the amount of properties that are not occupied on a permanent basis.
In order to meet the housing needs of local people, bring greater balance and mixture to the local housing market and create new opportunities for people to live and work here, to strengthen our community and the local economy the St Ives NDP also supports the principle of full time principal residence housing. This is new housing which has to be used as the principal residence of the household living in it, but does not have the price controls that affordable housing does, or any local connection requirement.
St Ives and Carbis Bay are in the top five settlements in Cornwall with the highest proportions of second homes and holiday lets… and are being proven in nationwide studies to be largely negative. In 2011, 25% dwellings in the NDP area were not occupied by a resident household - a 67% increase from 2001. Over this same period, housing stock in the NDP grew by 684 or 16%, but the resident population grew by only 270 or 2.4% and the number of resident households grew by less than 6%. The growth in housing stock in the NDP area between 2001 and 2011 was double the average across England. The socio-economic effects of such a high proportion of holiday properties are being felt by the local community…. This form of tourism has grown rapidly around St Ives, but a balance needs to be struck with the needs of local resident communities."
"The development of un-allocated sites may be considered only if:
a) they are for 50 dwellings or less;
b) the site forms a logical extension to the existing built up area and is not an isolated development in the countryside;
c) housing density is a maximum of 35 dwellings per hectare;
d) they are affordable housing-led schemes (i.e. deliver the maximum viable amount).
The purpose of such development must be primarily to provide affordable housing. Proposals should seek to provide 100% affordable housing. The inclusion of market housing will only be supported where it is essential for the successful delivery of the development proven by detailed financial viability appraisal. If viability appraisal demonstrates that less than 50% affordable housing is deliverable, the scheme will not be supported.
The number, type, size and tenure of dwellings should reflect identified local needs as evidence through the Cornwall housing register or any specific local surveys completed using an appropriate methodology. Where there is no evidenced local need, development will not be supported.
Proposals of over 25 dwellings must include a Masterplan setting out the proposed 'phasing' (expected completion years for different aspects of the development), taking account of the capacity of local infrastructure to meet residents' needs…".
In other words, any further development will be restricted to that which is "affordable housing-led".
"All of the undeveloped land adjoining the existing built up areas is classified as grade 2 or 3 agricultural quality and is or could be in beneficial agricultural use. Although these areas lie outside the area of Great Landscape Value…, they are nevertheless attractive and cherished countryside. Therefore, if any of these areas are to be given over for development, it is considered that the community should receive the maximum possible benefit from them in terms of contribution towards meeting the need for affordable housing. There was strong feeling about this in all our consultations….
There is also expected to be a significant contribution to Cornwall's strategic housing target – 1,100 dwellings were proposed under the revised Cornwall Local Plan by 2030 (December 2015) [a reference to the emerging Cornwall Local Plan 2010-30 ("the Cornwall LP")] – from windfall sites around the NDP Area. This policy also ensures therefore that any further housing development over and above this figure of 1,100 dwellings needed during the Plan period gives maximum community benefit…. This includes allocated sites that have not yet received planning permission prior to 1,100 being permitted – but does not preclude these sites from being developed. The high-grade nature of the land and strength of community feeling both justify such a policy".
The Grounds of Challenge
Ground 1: Policy H2 does not comply with the requirements of the SEA Directive and Regulations.
Ground 2: Policy H3 does not comply with the requirements of the SEA Directive and Regulations.
Ground 3: Policy H2 is incompatible with article 8 of the ECHR.
Ground 1: Policy H2 and the SEA Directive
"Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I."
"(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;…".
"… shall identify, describe and evaluate the likely significant effects on the environment of –
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme."
"5.13 … The first consideration in deciding on possible reasonable alternatives should take into account the objectives and the geographical scope of the plan….
5.14 The alternatives should be realistic. Part of the reason for studying alternatives is to find ways of reducing or avoiding the significant adverse environmental effects of the proposed plan…".
"Only reasonable, realistic and relevant alternatives need to be put forward."
"(i) The authority's focus will be on the substantive plan, which will seek to attain particular policy objectives. The EIA Directive [i.e. Council Directive 85/337/EC] ensures that any particular project is subjected to an appropriate environmental assessment. The SEA Directive ensures that potentially environmentally-preferable options that will or may attain those policy objectives are not discarded as a result of earlier strategic decisions in respect of plans of which the development forms part. It does so by imposing process obligations upon the authority prior to the adoption of a particular plan.
(ii) The focus of the SEA process is therefore upon a particular plan – i.e. the authority's preferred plan – although that may have various options within it. A plan will be "preferred" because, in the judgment of the authority, it best meets the objectives it seeks to attain. In the sorts of plan falling within the scope of the SEA Directive, the objectives will be policy-based and almost certainly multi-stranded, reflecting different policies that are sought to be pursued. Those policies may well not all pull in the same direction. The choice of objectives, and the weight to be given to each, are essentially a matter for the authority subject to (a) a particular factor being afforded particular enhanced weight by statute or policy, and (b) challenge on conventional public law grounds.
(iii) In addition to the preferred plan, "reasonable alternatives" have to be identified, described and evaluated in the SEA Report; because, without this, there cannot be a proper environmental evaluation of the preferred plan.
(iv) "Reasonable alternatives" does not include all possible alternatives: the use of the word "reasonable" clearly and necessarily imports an evaluative judgment as to which alternatives should be included. That evaluation is a matter primarily for the decision-making authority, subject to challenge only on conventional public law grounds.
(v) Article 5(1) refers to "reasonable alternatives taking into account the objectives… of the plan or programme…" (emphasis added). "Reasonableness" in this context is informed by the objectives sought to be achieved. An option which does not achieve the objectives, even if it can properly be called an "alternative" to the preferred plan, is not a "reasonable alternative". An option which will, or sensibly may, achieve the objectives is a "reasonable alternative". The SEA Directive admits to the possibility of there being no such alternatives in a particular case: if only one option is assessed as meeting the objectives, there will be no "reasonable alternatives" to it.
(vi) The question of whether an option will achieve the objectives is also essentially a matter for the evaluative judgment of the authority, subject of course to challenge on conventional public law grounds. If the authority rationally determines that a particular option will not meet the objectives, that option is not a reasonable alternative and it does not have to be included in the SEA Report or process."
Ground 2: Policy H3 and the SEA Directive
"I conclude… that a change is required to ensure that the overall housing requirement is regarded as a minimum. However, it is not necessary to similarly indicate that all the apportionments for each town and CNA [i.e. Community Network Area] residuals should be minimum figures. The basis for the apportionments is not an exact science and some flexibility in delivery is reasonable…".
In other words, in the hands of the various towns etc, the allocation should be treated as a target – but a target seen in the knowledge that the development plan overall housing requirement to which it contributed was a minimum. Whilst I appreciate this report was after the decision challenged in this claim, it nevertheless identifies the substantive nature of the allocations.
"Reasonable alternatives should be identified and considered at an early stage in the plan making process as the assessment of these should inform the preferred approach.
There is no express description of the 1,100 units as a minimum or as a maximum in the [Cornwall LP]. It is the figure identified by the emerging Local Plan for the St Ives area. The testing of alternative requirements in terms of quantum may well be a matter for the SEA of the Local Plan but for the [NDP] the issue is how to accommodate the requirement identified for the area by the emerging Local Plan. So the SEA quite properly considered alternative means of accommodating the 1,100 units within the area as reasonable alternatives; it was not its role to test reasonable alternatives to the proposed allocation."
In my judgment, that, at the very least, gave reasonable consideration to the issue on an appropriate analytical basis. Although there may well have been power for the St Ives NDP to increase the housing supply figure over the housing allocation in the Cornwall LP, it was properly open to the Council to consider that the St Ives NDP should primarily concern itself, not with what the target should be, but how that target should be delivered.
Ground 3: Policy H2 and Article 8
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
"Convention rights" are defined to include the rights set out in the ECHR (see section 1(1)).
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"… [T]he [St Ives NDP] itself neither creates rights nor imposes obligations: the most it can do is to affect the outcomes of later decisions which do create rights and impose obligations (i.e. the determination of planning applications) via the statutory priority afforded to development plan documents."
i) The policy is not in pursuit of any of the legitimate public interests identified in article 8(2).
ii) In any event, any interference with the article 8 rights of future householders would not be in accordance with the law. If an individual continued to live in the dwelling as anything but his principal residence, he would be in breach of the planning restriction, and be liable to enforcement action, which might include criminal sanctions. However, he would not know how the Council would exercise its discretion not to take enforcement action: the policy does not address the issue of the circumstances in which article 8 rights will be sufficiently infringed that it will decline to enforce. That gives rise to such uncertainty as to render unlawful the part of the scheme into which Policy H2 fits.
iii) In any event, the interference would be disproportionate, and therefore, in article 8(2) terms, unnecessary.
i) Article 8 does not give a right to a home, or to a home in any particular place.
ii) However, where someone has a home in a particular dwelling, it may interfere with the article 8 rights of him and/or his family to require him/them to move.
iii) Whilst those rights demand "respect", they are of course not guaranteed. In this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual's article 8 rights.
iv) Where article 8 rights are in play in a planning control context, they are a material consideration. Any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with article 8 rights effectively being dealt with by way of such a fair balance analysis.
v) That balancing exercise is one of planning judgment. Consequently, it may be amenable to more than one, perfectly lawful, result; and this court will only interfere if the decision is outside the legitimate range. Indeed, in any challenge, the court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an inspector).
vi) If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals. In practice, cases in which this court will interfere are likely to be few.
"The Court has already had the occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community. It is not for the Court to substitute its own view of what would be the best policy in the planning sphere…".
Indeed, given that planning plans provide a framework for decision-making in individual cases – and, generally, human rights cannot be considered in a vacuum but only in the application of law and policy to an individual case: see Chapman at ) – the margin of appreciation allowed to planning authorities in preparing such plans must be particularly broad.
i) The report says that the policy was "promoted for the social and economic well-being of the area as set out in the NDP and [Examiner's Report]. That is for the economic and social well-being of the area in which it applies rather than for well-being nationwide".
ii) The report also suggests that the policy is justified by reference to the "rights and freedoms of others to own and occupy their own homes in the area and who are presently prevented from doing so by the strong second and holiday home market".
i) "Social well-being" is not, in any event, within the ambit of article 8(2); and, with regard to economic well-being, the St Ives NDP is a neighbourhood plan, which is concerned with a very small area – a single parish – such that its policies cannot, on any analysis, engage the economic well-being "of the country". In support of that contention, Mr Banner relied upon authorities such as Gillow and Hatton v United Kingdom  37 EHRR 28, which, he submitted, looked at the economic effect of a decision on a national scale.
ii) Local residents have no right to future market ownership; and, by imposing restrictive conditions, the market value of dwellings would in any event reduce, which in turn would reduce the viability of housing developments generally. Consequently, the Policy H2 is likely to have an adverse effect on the rights (if any) and interests of local residents with regard to future housing.
i) Having a coherent planning system is a matter of national public interest. The overarching national planning policy is the achievement of sustainable development (paragraph 6 of the NPPF), i.e. it is in the national interest that development is sustainable. The NPPF defines "sustainable development" as comprising three dimensions: economic, social and environmental. As for the economic role, paragraph 7 of the NPPF provides that it includes:"contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements…".Where a development makes such a contribution, it thus contributes to "the economic well-being of the country".The justification for Policy H2, as set out in the supporting text of the policy (see paragraph 26 above), is as follows:"… to meet the housing needs of local people, bring greater balance and mixture to the local housing market and create new opportunities for people to live and work here, to strengthen our community and the local economy…".On the basis of that justification, the Examiner expressly found that "the restriction of further second homes does in fact contribute to delivering sustainable development", a conclusion which the Claimant does not seek to challenge – nor could it. In making that "economic" contribution to sustainable development, Policy H2 thus promotes the interests of "the economic well-being of the country".In a very different context, in Zammit Maempel v Malta (2011) (Application No 2402/10, 22 November 2011), it was held (at 64]) that legislation which permitted the letting off of fireworks was justified because "fireworks displays are one of the highlights of a village feast which attracts village locals, other nationals and tourists, an occasion which undeniably generates an amount of income which therefore, at least to a certain extent, aids the general economy". That shows that something which is of local economic advantage may be in the interests of the economic well-being of the country.
ii) Steps taken to safeguard the environment can be relied upon as protecting the rights and freedoms of others (see Chapman). The Examiner found that Policy H2 operates to safeguard the sustainability of St Ives. As such, it operates to protect the rights and freedoms of (amongst others) those who live (or who, in the future, will live) in St Ives.