Borough council defends judicial review challenge over draft neighbourhood plan

Waverley Borough Council has successfully defended in the High Court its decision that a draft neighbourhood plan met the basic conditions to be lawful.

The case of Bewley Homes Plc & Ors, R (on the application of) v Waverley Borough Council [2017] EWHC 1776 (Admin) concerned the draft Farnham Neighbourhood Development Plan 2013 -2031.

An examiner, Derek Stubbing, had produced a report on 22 February this year, following written representations and evidence as well as an oral hearing.

On 4 May 2017 the plan, which covers the entire administrative area of Farnham Town Council, was put to a referendum. It was passed by 10,044 votes in favour (with 1,097 votes against).

Pursuant to an agreement reached between the parties, Waverley agreed not to make the neighbourhood plan, pending the outcome of an application for judicial review.

The claimants were housing developers who had participated in the plan process because they held interests in land in the Farnham area, which they wished to develop. However, their sites were not allocated for housing.

They submitted that the decision not to allocate their respective sites might not have been made had alleged legal errors been avoided.

Mrs Justice Lang said at the heart of their claim was the submission that the draft Farnham Neighbourhood Development Plan ought not to have been made until after Waverley had adopted the emerging Local Plan, and thus updated the relevant local policies.

The challenge was brought on three grounds:

1. The examiner reached an irrational conclusion that the draft plan complied with the basic condition of being in conformity with the strategic policies of the Local Plan 2002.
2. The examiner failed to provide reasons to dismiss a detailed note by the consortium of developers which attacked the SPA avoidance strategy which was used to support the approach to SANG ("suitable alternative natural greenspace") in the plan;
3. The examiner failed to have consideration or provided any reasons to dismiss representations made by Wates, one of the claimants, which made criticisms of a consultant’s report (“The Amec report”).

Mrs Justice Lang concluded that the examiner's examination and report were both lawful, and that Waverley was entitled to rely upon his recommendations in deciding, pursuant to paragraph 12 of Schedule 4B of the Town and Country Planning Act 1990, that the draft neighbourhood plan (as modified) met the basic conditions in paragraph 8(2) of Schedule 4B and should be put to a referendum.

She said the grounds of challenge were arguable and so she granted the application for permission. But she dismissed the claim for judicial review.

Cllr Julia Potts, Leader of Waverley, said: “In May 2017 Waverley Borough Council held a referendum and asked the people of Farnham whether the plan should be adopted. They voted yes. We all recognise and understand the need for new homes. Residents want to see appropriate development with supporting infrastructure, but in the places that are right for their community and Local Plans and Neighbourhood Plans help to ensure appropriate development.

“This is a victory for the people of Farnham and its villages and for Farnham Town Council – this is their plan. Years of hard work have gone into getting the plan prepared and it has been robustly consulted on and reviewed by an independent inspector."

Cllr Potts added: “I am both delighted and disappointed: Delighted that the judge has dismissed the developers’ claims and that the plan can now be adopted and used to help the council decide planning applications in the neighbourhood area. However, I’m disappointed that the developers’ decided that a legal challenge was an appropriate course of action.

"It is reassuring that the Judge has awarded costs; Waverley and Farnham Town Council have had to use a lot of resources and public money to defend a democratic decision in the High Court.

“I hope these developers will now try to engage constructively with us for the good of the borough and its residents.”