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Posted 25 April 2017
by Simon Sanger-Anderson

We’ll huff and we’ll puff and we’ll blow your plan down! Three developers threaten legal action in bid to stop neighbourhood plan



Three developers have threatened a legal challenge to a neighbourhood plan while a referendum on its adoption is in progress.

Bewley Homes, Wates Developments and Catesby Property Group want to halt the plan for Farnham, based on legal advice they received last winter.

A Waverley Borough Council spokesperson said: “The council has received a threat of a legal challenge and is currently seeking legal advice.

“However the Farnham Neighbourhood Plan referendum is proceeding as planned [on 4 May]”.

Advice to the developers from Rupert Warren QC, tabled during the inquiry into the plan, said its approach of allocating sites using a new Built Up Area Boundary was “contrary to the strategic policies of the adopted local plan, and is likely to fail against at least two of the basic conditions.

“It is also liable to a legal challenge on the additional freestanding basis of failure to undertake a compliant strategic environmental assessment.”

Mr Warren explained: “The central problem with the [neighbourhood plan] as currently drafted largely stems from the way its emergence falls between the saved policies of the Local Plan for the area and the as yet untested replacement local plan.

“[It] understandably seeks to provide for the prospective housing needs of the area, but in circumstances where those needs have not been tested and incorporated into a set of strategic policies at the local planning authority level.

“The courts have held that neighbourhood plans may allocate housing sites in the absence of strategic policies in the adopted plan; however, the case law does not appear to deal with situations like the present one.”

Development strategy is described in Farnham’s plan as focussed on “well designed development on brownfield sites within the built up area of Farnham whilst proposing further sites for housing development and a new business site on a range of greenfield sites”, though avoiding areas in the green belt, at risk of flooding or within the Surrey Hills area of outstanding natural beauty.

It also aimed to prevent towns coalescing and said “housing development should be directed away from Farnham”.

In a joint statement the developers said the legal action had been “given a great deal of consideration” and had only been entered “with real regret”.

They added: “Given the ongoing housing supply crisis that exists in Waverley and across the UK, the group is focused on meeting the critical need for sustainable, new home developments and delivering the local social and transport infrastructure to support that growth.”

The developers said their concerns had not been addressed by the examiner, Farnham Town Council or Waverley Council “and as a consequence, the three parties believe legal challenge is the only remaining recourse available to them”.

In the experience of the Tozers planning team, such challenges are rarely successful: if they are to have any chance of success then they need to launch as early on as possible – the same principle applies to a Town or Parish Council seeking to challenge a local plan or Judicially Review a planning decision. 

From the developers perspective there is a strategic balance to be struck between pursuing a commercial objective and running the risk of being seen as a developer which a local council would rather NOT have on their patch.  In this case, will they succeed in huffing and puffing the neighbourhood plan down?  We shall see.

 

For further advice please contact our specialist councils and planning team

Broadwalk House, Southernhay West, Exeter EX1 1UA
call: 01392 204515 or email: councils@tozers.co.uk

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About the author

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group