We reported earlier in the year on the Court of Appeal decision in the DLA Delivery case. The Court of Appeal considered a neighbourhood plan which had come forward in accordance with the emerging local plan, rather than the out of date strategic plan.
The Court of Appeal upheld the decision of the High Court, finding that Neighbourhood Plans (NPs) can be prepared in accordance with an evolving plan before an up to date Local Plan is in place. However, as discussed previously, this could be a risky approach for NP groups where a local plan with a higher objectively assessed need is subsequently adopted, and the NP quickly becomes out of date.
This is almost exactly the situation in Farnham. The then draft Farnham Neighbourhood Plan (FNP) survived a judicial review of the decision of Waverley Borough Council that the basic conditions were met, on the basis the plan was prepared in accordance with the emerging local plan, rather than the existing local plan. Lang J in the High Court followed DLA Delivery, finding the test that an NP must be in general conformity with the strategic policies in force is a flexible test, and a matter of planning judgment, dismissing the claim.
Following an 88% “yes” vote at referendum, the FNP was formally made in July 2017, becoming part of the development plan for the local area. The FNP allocated land for approximately 2214 homes for the NP period to 2031, based on a need for 2,300 to 2032 in the 2016 pre-submission draft of the Waverley Borough Local Plan. The FNP reports close cooperation with the Borough Council on housing need.
However, on examination of the draft Local Plan, the Inspector suggested modifications leading to an increase in the housing target from 519 to 590 homes per year, increasing Farnham’s target to 2,780. The Council’s intention is to address this by considering additional sites in Part 2 of the Local Plan. The modifications to the housing targets have been noted by the Council’s Special Executive committee, and authority given to the Head of Planning to agree the final submission to the Local Plan Inspector. The report to the Special Executive noted that full weight would continue to be afforded to the FNP, Part 2 of the Local Plan will take precedence where there is a conflict, as the more recently adopted document. It envisages that additional allocations at Farnham will be made through Part 2 of the Local Plan.
While the Council is supportive of the FNP, it must be disappointing for the FNP group who had worked hard to allocate appropriate housing sites that further sites will now be allocated by the Council. While the FNP body could seek to modify the plan, the amendments facilitating modification in the Neighbourhood Planning Act 2017 are not yet in force, and modification is unlikely to be appealing so soon after the original version was made. To avoid similar situations in the future, other bodies preparing NPs should consider taking a robust approach and set out a strategy for dealing with increases in housing numbers (perhaps by way of future modifications or identifying white land to be released if required), to avoid the result of their hard work quickly becoming out of date.
As discussed previously, the December 2016 Written Ministerial Statement (WMS) provides additional protection for neighbourhood plans, providing that NPs will not be considered out of date where:
- The Written Ministerial Statement or the NP are less than two years old;
- The NP allocates sites for housing; and
- The LPA can demonstrate a three year housing land supply.
This gives NPs some additional leeway, protecting their position where the LPA can meet some, but not all, of its objectively assessed need. However, the recent Inspector’s decision at Thames Farm, Shiplake near Henley on Thames demonstrates how strictly this can be applied. The Inspector granted permission contrary to NP policies where the LPA had a three dwelling shortfall against three year housing land supply, suggesting that NP bodies should be cautious about relying on the WMS.