The Cala Homes saga refuses to go away for the Secretary of State, who has thrown in the towel at the last minute on the challenge to his decision to refuse Cala Homes planning Permission.
What is prematurity?
Prematurity is the argument that planning permission should be refused not because a proposal is unacceptable in itself but because to grant approval would prejudice emerging policy.
Until recently it was a rarity in the planning system, which has traditionally frowned upon its use as a reason for refusing permission. PPS3 makes it clear that prematurity alone should not justify a refusal and guidance published in 2005 states that a refusal on the grounds of prematurity will not be justified unless the development is so substantial as to predetermine decisions about the scale, location or phasing of development that will be made by the emerging policy.
Inspectors have generally avoided prematurity, instead placing increasing weight on an emerging policy document as it makes it way through the adoption process.
So why is it a problem now?
There has been a marked increase in the number of appeals being refused on the grounds of prematurity in recent months.
For example, the Secretary of State justified overturning a recommendation to allow Cala Homes appeal in Winchester on the basis that, while the scheme was generally acceptable, granting permission in advance of the local authority having a chance to complete its ongoing review of planning policy would prejudice the outcome of that review. This was despite the local authority having only just begun the process of public consultation and any new planning policy being years away from adoption.
Used in this way, prematurity acts as an incentive for local authorities who are hostile to development to drag their feet on policymaking. The more they delay adoption, the longer they can resist new development.
Prematurity also undermines the PPS3 five year housing land supply requirement and is difficult to reconcile with the proposed presumption in favour of sustainable development, which is meant to apply when the Development Plan is out-of-date. If local authorities can refuse applications because they are premature the presumption becomes meaningless.
Where does Cala come into all of this?
Cala’s appeal was one of the first refused recently on the grounds of prematurity and Cala’s challenge to the decision was due to be heard in the High Court later this week.
We now understand that the Secretary of State has had a last minute change of heart and has agreed to his decision being quashed. While details are sketchy, an acknowledgement by the Secretary of State that his decision was unlawful throws into doubt the increasing use of prematurity as a reason for refusal and has implications for many other development proposals.
Comment: We have been expressing concern about the Secretary of State’s new found enthusiasm for prematurity as a reason for refusing planning permission for some time. The planning system has, until recently, rightly sought to confine the use of prematurity to very narrow circumstances because of the uncertainty and unfairness that it causes.
We therefore welcome the Secretary of State’s recognition that his use of prematurity has gone too far. This news will help to put prematurity firmly back in its box and give developers much more confidence to move forward with proposals at a time when planning policy is undergoingmajor review.