Policy to Prohibit Second Homes Upheld

January 1, 2017

By Peter Dixon

A regional housebuilder challenged the decision of a local planning authority to submit a neighbourhood plan to a local referendum on the grounds that two of the plan’s proposed policies did not comply with the SEA Directive and that one was incompatible with Article 8 of the European Convention on Human Rights.

The controversial plan was prepared by St Ives Town Council and the policies in issue were intended to combat the perceived impact of second home ownership upon the local housing market by making new open market housing development subject to a ‘principal residence’ requirement and restricting large scale housing development on unallocated sites to affordable housing to meet local needs.

The SEA challenge was on the basis that there had been a failure to comply with the requirement of the directive to consider ‘reasonable alternatives’ including what the Claimant’s advocate described as the “obvious alternative” to the principal residence requirement, which was to significantly increase the supply of market housing and thereby increase the access to housing for local people.

The Court held that a ‘reasonable alternative’ was one capable of meeting the same policy objectives and at least environmentally equal to the preferred option and that the Claimant had failed to show that there had been any failure to consider reasonable alternatives on that basis.

The ECHR challenge was on the basis that the plan was not compatible with Article 8 of the Convention (respect for private and family life) and thereby paragraph 12(4)(a) of Schedule 4B of the 1990 Act (the relevant neighbourhood plan procedural requirements).   The essence of the challenge was that the imposition of a condition on a future grant of planning permission for a dwelling pursuant to the principal residence requirement would carry the risk that a future occupant would suffer interference with their Convention rights, for instance because they would be unable to retain their home when required to work elsewhere for an extended period.

The Court was not persuaded that Article 8 was necessarily engaged by a policy that might give rise to future circumstances in which Article 8 is engaged and infringed but on the basis that it might went on to consider whether, if it did , the interference with Article 8 rights in such circumstances would be justified.   Having considered all of the elements in Article 8(2) the Court held that the infringement would be (1) in pursuit of legitimate public interest (2) in accordance with the law (3) necessary.

The challenge was dismissed.

R(RLT Built Environment Limited) v (1) Cornwall Council (2) St Ives Town Council [2016] EWHC 2817 (Admin)