Town and country planning – Neighbourhood development plan – Referendum – Claimant applying for judicial review of decision to hold local referendum on making of neighbourhood development plan – Whether defendant local authority acting in breach of obligations under and requirements of Strategic Environmental Assessment Directive – Whether risk of interference with rights under article 8 of ECHR – Application dismissed
The claimant, a company specialising in residential development design and planning in Cornwall, applied for judicial review of a decision of the defendant local planning authority to hold a local referendum on the making of a neighbourhood development plan in St Ives, a small tourist town on the North Cornwall coast. The town had one of the highest proportions of second homes and holiday lets in Cornwall; and the proportion of dwellings occupied other than by resident households had substantially increased in recent years.
The draft plan prepared by the interested party town council included 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 to have a restriction to ensure its occupancy as a principal residence. Policy H3 of the plan sought to promote affordable housing, imposing limits on any new development over and above 1,100 new dwellings in the neighbourhood area. The submission of policy H2 was accompanied by a sustainability appraisal which purported to comply with the Strategic Environmental Assessment Directive 2001/42/EC (the SEA Directive) and the Environmental Assessment of Plans and Programmes Regulations 2004. An independent examiner concluded that the draft plan would contribute to sustainable development. A referendum was held and 83% of those who voted were in favour of using the neighbourhood plan to help decide planning applications in the area.
The claimant contended that: (i) the defendants had failed to discharge their obligations under the SEA Directive because they failed to consider the most obvious alternative to policy H2 of facilitating more market housing; (ii) the defendants were in breach of the requirements of the SEA Directive and the 2004 Regulations because they failed to consider reasonable alternatives to the threshold figure of 1,100 dwellings; and (iii) there was a real risk that policy H2 would interfere with rights under article 8 of the European Convention on Human Rights.
Held: The application was dismissed.
(1) The fact that article 5(1) of the Directive required the sustainability appraisal to identify, describe and evaluate the environmental effects of all reasonable alternatives that were capable of meeting the relevant policy objectives, did not mean that the appraisal had to consider all theoretically possible options. The express aim of policy H2 was to safeguard the sustainability of the settlements in the neighbourhood plan area by meeting the housing needs of local people and strengthening the local community and economy. The evidence indicated that the demand for second homes in the area showed no signs of abating so that any increase in market housing would not meet the policy objective behind policy H2 of reducing the proportion of dwellings without residents. In any event, any reasonable alternative would have to be at least environmentally equal to the preferred option, whereas policy H3 described the environmental challenges of increasing supply beyond the housing target. It followed that the plan did not breach the EU obligations imposed by the Directive and progressing it to a referendum did not breach, nor was it incompatible with, the Regulations: Heard v Broadland District Council [2012] EWHC 344 (Admin); [2012] PLSCS 51 applied. Ashdown Forest Economic Development LLP v Secretary of State for Communities and Local Government [2014] EWHC 406 (Admin) considered.
(2) Prior to progressing the neighbourhood development plan, the defendants had considered a higher threshold figure than 1,100 as a reasonable alternative. Although it was sensible to ensure that the plan had policies within it to meet the Cornwall Local Plan allocation, there was no obligation on the town council to ensure that national policies with regard to housing requirements were met. In any event, policy H3 did not proscribe residential development once consent had been granted for 1,100 dwellings, nor did it strictly limit any further housing to affordable housing: R (on the application of Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin) applied.
(3) By virtue of paragraph 12(4)(a) of Schedule 4B to the Town and Country Planning Act 1990, a draft neighbourhood development plan could not be progressed to a referendum unless the planning authority was satisfied that it was compatible with European Convention rights, including article 8. Paragraph 12(4)(a) required a planning authority to consider whether the policies in a neighbourhood development plan would, or might, result in future violations of Convention rights. The court was not convinced that a policy that might give rise to future circumstances in which article 8 was engaged and infringed would necessarily itself engage article 8. In the present case, no one but the claimant had complained of a risk to their Convention rights. For those who faced such a risk, there were considerable checks and balances within the planning regime. Even if article 8 was engaged, policy H2 was in pursuit of legitimate public interests identified in article 8(2), namely the economic wellbeing of the country and the protection of the rights and freedoms of others. Therefore, any interference with article 8 rights was justified. Such interference was also proportionate, given the broad margin of appreciation allowed to planning authorities in the choice and implementation of planning policies. The defendants had been entitled to conclude that further development was unsustainable without the restriction in policy H2 and it was not open to the claimant to challenge that exercise of planning judgment on its merits: Chapman v United Kingdom (2001) 33 EHRR 18 applied. Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 followed. R (on the application of Purdy) v DPP [2009] UKHL 45 distinguished.
Charles Banner and Luke Wilcox (instructed by Stephens Scown LLP, of Exeter) appeared for the claimant; Mark Lowe QC and Jack Parker (instructed by Cornwall Council Legal Services) appeared for the defendants; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
