The further ground of challenge in R (on the application of Save Our Parkland Appeal Ltd) v East Devon District Council (see PP 2012/12) was based on the planning concept of prematurity. This is the argument that planning permission should be refused, not because the development proposal in itself is unacceptable but because granting permission would prejudice emerging planning policy. (In recent times, it has been increasingly common for local planning authorities to resort to this approach in the case of new large-scale development.) Government guidance is set out in “The Planning System: General Principles (2005)”. That guidance may be summarised as follows.
(1) In some circumstances it may be justifiable to refuse planning permission on grounds of prematurity where a development plan document (“DPD”) is being prepared or is under review but has not yet been adopted. (2) This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by pre-determining decisions about the scale, location or phasing of new development being addressed in a policy in the DPD. (3) A proposal for development that has an impact on only a small area would rarely come into this category. (4) Otherwise, refusal on planning permission on grounds of prematurity will not usually be justified and planning applications should continue to be considered in the light of current policies. (5) However, account can also be taken of polices in emerging DPDs with the weight to be attached depending upon the stage of preparation or review and increasing as successive stages are reached. (6) Where planning permission is refused on grounds of prematurity, the local planning authority will need to demonstrate clearly how the grant of planning permission for the development concerned would prejudice the outcome of the DPD process.
In the present case, the court pointed out that at the time the decision to grant planning was made the consultation process in respect of the DPD in question was merely two weeks old. There was no early prospect of submission for examination. Accordingly, given government guidance (above), a refusal of permission on the basis of prematurity would have been in breach of that guidance. Equally, this ground of claim failed to establish any error of law on the part of the local planning authority in granting outline planning permission.
John Martin
