Planning permission jetty-soned in victory for “second homeowners”

PLC Public Sector reports:

The recent High Court decision finding against Kerrier District Council (the Council) in favour of the Helford Village Development Company Limited (the Residents Group) made the headlines due to its “locals v second homeowners” billing.  The quashing of the Council’s decision to grant planning permission to the Parish Council for a jetty for local fishermen in the picturesque Cornish village of Helford has been described as a victory for second home-owning out-of-towners at the expense of the livelihood of locals. 

The extent to which this is true is difficult to quantify, with the Residents Group claiming to have the support of 150 members (amounting to a majority of village residents). However, whatever the truth in the claims and counterclaims, the case did highlight the potential difficulty in translating Government requirements (in this instance those of Natural England) into enforceable planning conditions.

The Residents Group was successful because the court found that the Council’s planning conditions did not give effect to the requirements of Natural England.  The site of the proposed jetty was within a site of special scientific interest (SSSI) and also a special area of conservation (SAC).  Natural England indicated that, provided another area of the shore was turned back to nature, they would not object to the jetty.  This was because the net effect would be to maintain, but not increase, the amount of the shoreline, which was subject to vehicular access.  To address this requirement the Council included a planning condition that required people to access the jetty by a particular route away from the part of the shoreline that was to be returned to nature.  The planning officer appears to have assumed that this met Natural England’s requirements and did not therefore provide any further detail of the requirements for consideration by the planning committee.

It is true that the outcome of the construction of the jetty should have been that the shoreline in question was no longer used by the fishermen.  However,  the planning condition could not actually guarantee that this would be the case or prevent any other member of the public from using the shoreline.  On this basis the court found that as the planning condition did not give effect to the requirement and this fact had not been brought to the attention of the planning committee, the planning permission should be quashed.  

This decision highlights two key points:

  • The need to pay very close attention to the drafting of planning conditions to ensure they are deliverable (in particular, that they conform with the requirements of planning permission circular 11/95) and also that they achieve the requirements which they set out to.   
  • Secondly, where there is any doubt or confusion about whether the planning condition will fulfil a government requirement, it should be highlighted in reports to the planning committee, so that it will be clear that the issue was given full consideration in determining the planning application.

The case is also interesting as it appears to display a suprisingly laid back attitude from Natural England toward a development in an SSSI and SAC, although it could be said that, ultimately, its requirements did lead to the planning permission being quashed.

As a footnote, it is worth noting that the Residents Group did receive some criticism from the court, as the remaining 7 grounds for judicial review submitted (disabilities, regeneration and employment, flooding, alternative sites, flooding, health and safety, process and the manner in which the permission was expressed) all failed.  As a result the Residents Group was only awarded 50% of its costs.

  

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