The recent cases on prematurity are interesting because they are an example of the Government prioritising its localism agenda over its pro-growth agenda, a planning expert said. The case was heard by the High Court on 6 February and a draft judgment is expected next week.
"This is the first of the so-called 'prematurity' statutory challenges to be considered by the High Court, after a series of SoS refusals of residential planning appeals last year," said Jo Miles, a planning expert at Pinsent Masons.
In circumstances where a development plan is being prepared or undergoing review, it may be justifiable to refuse planning permission on the grounds of prematurity where to grant planning permission would prejudice the outcome of the plan process and predetermine decisions on scale, location or phasing of development proposals which should be made in the context of the development plan.
Fox Land initially appealed the decision of Cheshire East Council to refuse planning permission last year. The developers had applied for outline planning permission to build up to 280 dwellings, and for landscaping, open space, highway and associated works.
Subsequently, in accordance with the ‘recovered jurisdiction’ process, Eric Pickles decided the case rather than delegating it to one of his Planning Inspectors citing the size of the project and its impact on the Government's objectives to secure a better balance between housing demand and supply.
The SoS’s subsequent decision letter acknowledged that Fox’s application accorded with the Regional Spatial Strategy (RSS), as maintained by a previous decision involving Cala Homes.
Pickles determined, however, that the application must be weighed in the planning balance with the development plan policies, with regard to "settlement boundaries, the restriction on development in the countryside, and the loss of best and most versatile land unless absolutely unavoidable," according to the letter.
The more advanced the development plan is, or the larger the development, the more likely it is that a rejection on the grounds of prematurity would be justified. To grant permission could prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context.
"These prematurity cases suggest that even where a local plan is out of date and there is an acknowledged shortage in housing land supply, the SoS may in some circumstances place greater significance on allowing local authorities (in consultation with local people) to make their own decisions on the appropriate level and location of future housing provision in their area," said Miles.
A Ministerial Statement expands on the circumstances when it is appropriate to refuse planning permission on the grounds of prematurity, but states that each case must be decided on its own merits.
The hearing in respect of the CALA Homes statutory challenge is expected to commence in Cardiff on 15 February 2012.
