Planning developed a protocol for these situations 30 years ago – the ‘permitted assumption’ that a structure plan was adopted in applying the general conformity test – why not the same principle qua local plans and neighbourhood plans?
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”.