The publication of the NPPF in March 2012 raised questions about the approach to prematurity. Refusal on prematurity grounds has been rare, but Nick Boles announced a 12 month extension in July 2014 of the recovery of planning appeals for consideration by the Secretary of State, to include those where a Neighbourhood Plan (NP) has been made or submitted. It was anticipated that NPPF policy would be applied – with limited weight being given to emerging NPs, becoming stronger as submission, examination and referendum stages had progressed (and depending on how far objectively assessed needs (OAN) are being met).
The issue has been political football, though, receiving a big kick before the General Election. Three recovered appeal schemes – between 100 and 350 homes – (at East Stafford, Sayers Common and Devizes) were refused against Inspector recommendations. Early stage NPs trumped inadequate housing land supply. The fallout helpfully clarifies the correct approach.
Groundhog Day?
The NPPF deals with the situation where there is an emerging but early stage plan – and tells decision makers to ‘get on with it’ unless the proposals conflict with the NPPF policies themselves. It says nothing about ‘prematurity’ – predetermination of plan-making choices by the grant of planning permission. CLG consented to judgment in the Barton Farm, Winchester case in 2012, having refused permission for Cala Homes’ scheme on grounds of prejudice to a Neighbourhood Planning process still in its early infancy.
Since then, the Planning Practice Guidance has filled the gap, accepting that prejudice to very early stage plans should rarely justify refusal, and only where:
- the adverse effects would clearly, significantly and demonstrably outweigh the benefits;
- in the case of NPs, they have passed the 6 week local authority publicity period; and
- there is some fundamental harm to the plan itself as a result.
Judicial clarity
That was not the case at Sayers Common, where the Secretary of State overturned his Inspector’s recommendation to allow Woodcock Holdings’ appeal against the local authority’s decision (to refuse permission – solely on the grounds of prematurity relative to the Hurstpierpoint and Sayers Common 2031 Neighbourhood Plan, HSCNP). The HSCNP had been through Parish and District Council publication stages and, by the time of the Secretary of State’s decision, subject to Examination in Public. It was further down the line than the entry level requirement for prematurity in the PPG. The Secretary of State refused permission based on conflict with the emerging plan policies and prematurity (despite accepting that Woodcock’s appeal satisfied NPPF policies).
The judgment in the resulting legal challenge helpfully draws a clear line under all this, finding the decision unlawful on the basis that:
- Emerging plan policies must be treated as ‘out of date’ where there is no 5 year supply of housing judged against objectively assessed housing needs [1] (paragraph 114 of the judgment). That includes emerging NPs, which subside beneath the NPPF policies themselves as a result (unless the NP clearly provides for more than the OAN);
- Clear reasons are needed for giving meeting OAN less weight than the Neighbourhood Plan process (and for refusing to following the approach recommended in the PPG);
- The NP adoption test is far more limited than for Local Plans. Issues in play for planning applications may not even be covered by the NP process. An application cannot, rationally, be premature to a process that is not considering the same issues. For example, the essential question of whether enough land has been allocated to meet OAN.The judge also held that the relevant parts of the HSCNP were inconsistent with the NPPF and so would be unlikely to either survive examination or allow a finding of prematurity.
Eric Pickles also consented to judgment in the East Stafford and Devizes case in the same week as this judgment was handed down
Back to the Future
As such, Woodcock Holdings sets the applecart back upright, confirming that:
- for conflict to be relied on, emerging policies should be at a significantly advanced stage and consistent with meeting OAN (regardless of whether they are Local or Neighbourhood Plans); and
- for prematurity to be relied on, the plan-making process itself should be working on the basis of meeting OAN that have been tested by independent examination.
Where an NP has explicitly set out to meet OAN in full (and those OAN have already been found robust at EiP), the situation may be different. Few NPs are prepared on the basis of either a tested OAN or a desire to meet needs in full or over-allocate sites though.
[1] Where there is no objective assessment (i.e. one that has been through the NPPF Examination in Public process and found to be sound), there can be no 5 year supply.
