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14 Mar
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Premature Application: It Never Normally Happens....

Introduction

The secret to a good planning application.... timing. Sweaty palms, nerves and sleepless nights, worrying that submitting your application at the wrong time and you could face accusations of a premature application.

In this blog, NJL look at recent case law to determine what constitutes prematurity and whether your application will fall foul of the planning authority.

Background

Ever since the change of Government shook up the planning system with the introduction of the National Planning Policy Framework (NPPF), many Council's had to restart their Local Plan process. The uncertainty this created, presented an excellent opportunity to promote sites that met the ‘golden thread' principle of sustainability.

Many developers took advantage of this and submitted planning applications whilst Council's prepared their new Local Plan. This, however, caused much concern amongst local planners who felt that some large scale development could pre-empt their plan and leave them unable to guide development in the manner they thought best. In effect, that the applications were ‘premature.'

This is a particularly hot issue for residential applications where Councils have been unable to demonstrate a five-year housing supply and do not have an up to date Local Plan.

It has been two years since the NPPF was introduced and several cases have now been reviewed by the Secretary of State who has considered the issue of prematurity. What can we learn from this?

The Policy Position

The NPPF is clear that while Council's can give weight to emerging planning policies when making decision on applications, the amount of weight will depend upon how much progress has been made with the emerging plan and the number of unresolved objections to it. The more advanced the preparation and the fewer the number of objections to a policy, the greater the weight it may be given.

While the NPPF is devoid of any further detail on the emerging policy issue, the Planning System: General Principles document states that, subject to specific exceptions, refusal of planning permission on the grounds that an application is premature will not usually be justified. The only appropriate grounds for refusing an application for prematurity is "where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions".

So there are two main elements to consider. How big is the application and how far advanced is the plan. How have these two points been interpreted in practice?

Scale

A sensible place to start is to ask what constitutes a "substantial" development? A recent case in Ribble Valley showed that the Secretary of State didn't believe that an application for 504 dwellings (20% of the overall requirement) was premature. Similarly an Inspector determining a case in Swindon for 700 units placed short shift on the issue of prematurity simply stating that "prematurity is not strong enough to be the sole reason for refusal."

But scale is relative. An application in Norwich for 175 dwellings was considered premature as it was only proposed that the settlement would deliver 50 homes in the emerging plan. As the development would represent a substantial increase on that figure, the Inspector believed it would predetermine the location of housing in the area.

Plan Stage

For all these cases, scale was only considered to be important in so far as it would restrict the ability of a Council to decide where development would be best located. So the progress that has been made with preparing a new Local Plan is equally important.

In the case of an appeal in East Sussex, while the adopted Core Strategy included a housing target, site specific allocations were to be included in an allocation plan that had reached publication stage. The Inspector therefore decided that the Council couldn't wait until 18 months before delivering houses.

In Ribble Valley decision mentioned earlier, the Core Strategy had actually been submitted for examination. Even thought the appeal site had been explicitly discounted by that Core Strategy, the Secretary of State judged that little weight being placed on the document because of the number of objections that remained.

What We Can Learn

The common thread between all the cases we have reviewed is that prematurity is not a killer argument and that the need to deliver housing weighed significantly in favour of all the schemes. In the case of Norwich despite the scheme being considered premature, the Inspector determined it did not outweigh the need to deliver housing and allowed the appeal. In Ribble Valley the Inspector said that "even if there were a prematurity objection it is not a trump card, as it can be outweighed by material considerations". In both cases the fact the Council didn't have a five-year housing supply was critical in terms of any prejudice argument and weighed heavily against a prematurity objection.

This view is neatly summed up by the Inspector's words in relation to an appeal for 120 units in Ashfield: "To delay determination would frustrate the Government's efforts to boost significantly the supply of housing. The Government has urged Councils to have up to date plans in place to guide development. The Council has no such plan."

Delivering housing, it seems, is the most important consideration.

Therefore, if you are having sleepless nights worried about embarrassing yourself with a premature application, please get in touch with NJL Consulting who can advise you on the perfect time to submit your application.

Image used courtesy of Paul Foot from Wikimedia Commons

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