To consider whether there appears to be sufficient grounds for Farnham Town Council to make a legal challenge to Planning Appeal APP/R3650/W/22/3311941 - Land West of and Opposite Old Compton Lane, Waverley Lane, Farnham.
The questions regarding a challenge may include:
1) Farnham Town Council supporting Waverley Borough Council as a Rule 6 Status supporter (entitled to appear at the inquiry and to ‘cross- examine’ other parties)if leave to appeal were given and if Waverley were to lead the challenge;
2) Farnham Town Council to lead a challenge;
3) No further action being taken.
Legal advice received from Counsel will be considered in exempt session as legally privileged information.
Cllr White introduced the report from Strategy & Finance attached at Appendix B to the agenda. The site was not included in the Farnham Neighbourhood Plan and was for a greenfield development on land that had been designated for an extension of the Surrey Hills AONB.
Council’s decision was sought on whether or not there were sufficient grounds to make a legal challenge having weighed up the advice received on the prospects of success and the likely costs of a challenge.
Waverley officers initially advised that apart from grammatical errors in the decision letter which was badly phrased, there was no plan to make any challenge but FTC officers have been separately exploring all opportunities to see if there was any prospect of FTC challenging the decision separately. An initial meeting took place with Steve Tilbury, FTC’s external planning advisor and discussions have taken place with the Director and Chair of the Surrey Hills AONB and its planning advisor.
Following the Council meeting on 27th July, FTC also commissioned a King’s Counsel to check independently whether there were grounds for challenging, and if so, what would be the estimated likelihood of success on the grounds available. Ideally the commissioning of a legal opinion in terms of questions and costs would have been shared with Waverley, but the questions and answers were not shared and had only been summarised for FTC.
The most significant issue centred around the site allocations and environmental protections in the Neighbourhood Plan, and whether or not the Inspector gave sufficient consideration to Farnham Neighbourhood Plan Policies 14 and 10c. The South Farnham Residents’ Association (SOFRA) had put in an enormous amount of work over several years in demonstrating the negative impact development would have, and the harm that would be made to the local environment which was designated as being of high landscape value and high sensitivity in the landscape study undertaken by HDA on behalf of the Town Council in preparing the Neighbourhood Plan.
Unfortunately, the Neighbourhood Plan no longer retained the 2 year protection for Made Neighbourhood Plans and the proposed NPPF changes (announced by Rt Hon Michael Gove in a Written Ministerial Statement in December 2022) extending this to 5 years had still not come into place. The Borough was short of its five-year land supply because approved sites were not being built out, which puts sites allocated in Neighbourhood Plans in a worse position than sites allocated in Local Plans. Cllr White said that effectively, this meant that communities are being held to ransom by developers.
In discussion, Cllr Wards said that if Farnham proceeded to get Leave to Appeal it would be acknowledged as having standards. He sought clarification on the likely costs and the Town Clerk advised this depended on whether Farnham could be a Rule 6 contributor (not applicable to Judicial Reviews) or whether the Aarhus Cap would apply. This principle limited the maximum payable ny individuals or small organisations like parish councils.
Cllr Merryweather endorsed the comments from Zofia Lovell and Noel Moss. Farnham and the community had been failed. Everything asked of us had been done, he said, but we have been failed by the government, failed by the Planning Inspectorate and failed by the developers. Developers prefer to build on greenfield spaces as they were more profitable and were not building homes they had permission to build.
He hoped Waverley would give its support to Farnham as all Neighbourhood Plan areas were at stake.
Cllr Hesse felt there were completely inconsistent decisions coming out of the Planning Inspectorate and the candidate area for the AONB would be swept aside.
Cllr Martin said this was one of the most important decisions Farnham would take. The council needed to fight back and seek Leave to Appeal. Cllr Murray agreed saying this was a David and Goliath story. If Leave to Appeal were given, the Council could crowd fund for the costs.
Cllr Mirylees said there was need to have a balance between the need for housing and keeping the countryside for people’s well-being.
Cllr Beaman said that it was really important that the appeal was supported by Waverley.
Cllr Ward underlined the need for Farnham to do the best it could for the people of Farnham. If Waverley went ahead with a challenge then Farnham should go with them. If Waverley did not lead then Farnham should as the town expects the town council to take a stand, and the costs were comparable with the spend on Farnham in Bloom.
In response to a question by Cllr Hesse, Steve Tilbury confirmed that town and parish councils regularly undertook challenges. The chances of success were as good as the arguments put before the judge and some challenges succeed when no-one else thought the applicant would succeed.
He advised that this would not be the case of the court re-deciding the planning application, but determining if the process was carried out correctly and there was a proper interpretation of policy. The Planning Inspectorate would, if the challenge were successful, have to reconsider the application and it could make the same decision again. He reminded Council that Inspectors had a significant scope to make a judgement. People will differ in their interpretation of the judgement but did the Inspector provided adequate reasoning and understand the key points.