Reigate and Banstead Borough Council’s core strategy dates from July 2014 and included an annual housing requirement for 460 homes, against an assessed need of between 600 and 640 homes.
Its plan review concluded in July that the core strategy did not need updating, even though the government's standard method produced an annual housing need figure of 644 homes.
In 2017, the government made it a legal requirement that authorities review their plans every five years.
However, the 2018 redraft of the National Planning Policy Framework (NPPF) made clear that "reviewing" a plan doesn’t always mean having to "update" it. Plans, it says, should be "reviewed" every five years to assess "whether they need updating".
Planning Practice Guidance (PPG) provides no process for deciding when an update is required, and there is no requirement for either planning inspector or secretary of state oversight.
Speaking yesterday at Planning's Planning for Housing conference, planning barrister Chris Young QC, of No5 Barristers Chambers, said that the council’s decision to "self-certify" was "absolutely ludicrous".
He said that the ability of councils to decide against an update within the existing rules, "can never have been what was intended" by the government and called for a change to the policy.
He added: "In the meantime, if I was at appeal, or I had an application, I would say that the review should be given no weight."
"We don’t give a document that one party produces any weight if there’s been no independent scrutiny, so why would you give it any weight?"
Reigate and Banstead's planning policy manager Billy Clements told Planning last month that its decision not to update the plan was "robustly justified" and took account of national policy and planning practice guidance. He said: "We strongly reject the notion that the council was exploiting a loophole or 'failing to plan'."
Speaking on the same topic, Jim Bailey, planning director at consultancy Pegasus, said that "many parties" were looking into "some kind of legal challenge at some point" to prevent councils from self-certifying.
"The government needs to make an amendment to the PPG to ensure that plans can only be reviewed by examination when representations can be made in the normal manner," he said.
Woking Borough Council, also in Surrey, was the first council to self-declare its plan as up-to-date without requiring any update in October 2018.