In a landmark case, which will have an impact not only in Cornwall, but also across the land. Cornwall Council is welcoming the news that the claim for judicial review (JR) submitted by RLT Built Environment Limited of the authority’s decision to support the publication of the St Ives Neighbourhood Development Plan and put it to a referendum in St Ives has been dismissed on all counts.
In simple terms, the residents of St Ives and Carbis Bay have had the Court uphold is Neighbourhood Plan to restrict new builds from being used as holiday/second homes. The neighbourhood plan has been tested by referendum on 5 May 2016 and of the 47% of electors entitled to vote , 83% voted in favour of Cornwall Council using the St Ives NDP to help decide planning applications.
Those who submitted the JR do have three weeks to submitted and appeal, but if they do not, then this plans can be used in planning applications.
The decision also means that town and parish councils with similar policies in their Neighbourhood Plans will also be able to progress them. These will be dealt with on a case by case basis subject to supporting evidence and the relevant Examiner’s report. I know this will be of interest in Porthleven; as the subject of restricting holiday/second homes has been raised by residents as part of the Porthleven Neighbourhood Plan process.
Prior to the referendum RLT Built Environment Limited, a firm of architects specialising in residential development and design, challenged the Council’s decision made on 17 March 2016 to proceed to referendum. The original challenge comprised 8 grounds, all but 3 of which were abandoned prior to the hearing on 6 October 2016, with the main challenge claiming that Policy H2 – the principal residency requirement , was incompatible with Article 8 of the European Convention on Human Rights.
The Judge in the case, Mr Justice Hickinbottom said in dismissing the judicial review he had not been convinced by any of the grounds put forward by the claimants:
“I do not consider any of the grounds strong – and I have expressly found some to be unarguable” he said. “I heard full submissions on all of the grounds, and I have given a full judgment. In all the circumstances, not without hesitation, I shall grant permission to proceed on all grounds; but, having done so, refuse the substantive application”.
The Judge heard full submissions on all of the grounds from both RLT Built Environment and the Council and gave permission for a hearing. He found that Grounds 1,2 and 3 ((4) of the original application) failed for the reasons set out in the detailed judgment and refused the substantive application.
For those technically minded in planning, the three grounds put forward by the claimants as part of the judicial review were :
Ground 1 : Policy H2 – the Principal Residence Requirement – does not comply with the requirements of the SEA (Strategic Environmental Assessment ) Directive and Regulations.
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 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 Cornwall 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).”
Ground 2 : Policy H3 – Development of Un- Allocated Sites and Additional Sites Following the Commitment of all Allocated Sites does not comply with the requirements of the SEA Directive and Regulations
The development of un-allocated sites may be considered only if:
- they are for 50 dwellings or less;
- the site forms a logical extension to the existing built up area and is not an isolated development in the countryside;
- housing density is a maximum of 35 dwellings per hectare;
- they are affordable housing led schemes (i.e. deliver the maximum viable amount).
Ground 3 : Policy H2 is incompatible with article 8 of the ECHR (European Convention on Human Rights . This states that .”Everyone has the right to respect for his private and family life, his home and his correspondence.” and “ 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 protection of health or morals, or for the protection of the rights and freedoms of others.”
Well played Cornwall Council for defending the wishes of residents of St. Ives and Carbis Bay.