High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The background.

Fortwilliam Road, Tobermore.

Further it was stated that a precedent can be limited by the facts of the case and a determining weight may be given to the existing plan as objections on grounds of prematurity have been outweighed; the Commissioner was not convinced by the appellant's arguments that the circumstances would limit precedent to the extent that objections on grounds of prematurity would be outweighed; the precedent was likely to be widespread given that a strategic objection had been received regarding the overall development limits of settlements within the plan area (paragraph 6.5).

Further it was stated that the issues raised on the appeal related to the strategic issues which should be debated comprehensively at the public inquiry; allowing the appeal would be premature because it would be a prejudgment of the issues and at that stage would prejudice the policies of the emerging plan; the application would have a significant cumulative effect and to grant permission would prejudice the outcome of the plan process (paragraph 6.6).

"The development of this 1.44 hectare site is not substantial within the overall housing allocation for the draft plan area and Tobermore is not defined by the plan as an important settlement. However, the Commission finds that, because of the extent and nature of objections to the draft plan proposals for the development of Tobermore and the strategic objections to overall development limits in the wider plan area, it would be premature to allow this appeal as this would predetermine decisions about the allocation of development land strategically in around Tobermore. Such decisions are more appropriately taken in the development plan context following the public inquiry into the draft plan when all issues can be considered comprehensively and the views of all interested parties can be assessed.

In addition the Commission considers it likely that if this appeal were allowed, a wide-ranging precedent would be established for proposals on other objection lands both around Tobermore and around other settlements in the plan area. The Commission's decision in …… appeals within the area of the draft Ards and Down area plan which raised similar conflicts between the existing plan and the draft plan, establish that, if precedent as a consequence of a decision to allow is limited, the provisions of the existing plan may prevail, overriding objections on grounds of prematurity. The Commission is not persuaded by the evidence presented that the appeal site is distinguishable from other objection sites around settlements or the precedent created by this approval would be limited to an acceptable extent. The Commission finds that the consequential cumulative effect would significantly prejudice the outcome of the plan process by predetermining decisions on the housing strategy. The Commission concludes that, notwithstanding the location of the appeal site within existing development limits of Tobermore, the departmental objections on grounds of prematurity should be accorded determining weight."

Calmore Road, Tobermore.

Further the proposal for 70 dwellings on the site could not be considered substantial in the context of Magherafelt district; while the department was concerned with the cumulative impact of an approval on the site together with other sites no evidence was presented as to the extent of objections in respect of excluded lands so the Commissioner was not in a position to conclude that approval of the proposal would set a precedent wider than Tobermore (paragraph 5.8).

"The development of this 4.4 hectare site is not substantial within the overall housing allocation for the draft plan area. Tobermore is not defined by the plan as an important settlement. The Commission finds nonetheless that because of the extent and nature of the objections to the draft plan proposals for Tobermore, it would be premature to allow this appeal as this could pre-determine decisions about the extent and form of the limit around Tobermore. Such decisions are more appropriately taken in the development plan context following the public enquiry into the draft plan when all issues can be comprehensively considered and the views of all interested parties can be evaluated. The Commission agrees that the precedent arising from allow the appeal proposal would be confined to objection sites around Tobermore but is not persuaded by the evidence presented that the appeal site is distinguishable from other objection sites around Tobermore. The relative merits of all objection sites should be considered in the development plan context."

Mullagh Road, Maghera.

Further the issue of precedent and cumulative effect was relevant and cases cited to the Commissioner demonstrated that precedent can be limited depending on circumstances and determining weight may be given to the existing plan; however the Commissioner had not been persuaded that the appeals site physical characteristics limited precedent to an acceptable level (paragraph 6.11).

"The Commission agrees with the Department that the importance of Maghera is reflected in the fact that it is the second town within the district and concurs with the Commissioner Summerville's conclusion that it is an important settlement in terms of paragraph 46 of PPS1 General Principles. The DMAP makes provision for approximately 600 dwellings in Maghera on approximately 21 hectares of zoned housing land. The proposal is to build 46 houses on a 2.8 hectare site, a relatively modest density of over 16 dwellings per hectare compared to an average density for Maghera as a whole of over 28 dwellings per hectare (600 units divided by 21 hectares). The Commission considers that in terms of the overall housing allocation for Maghera and the amount of land zoned for housing, the number of units proposed, or which could be built, on the site and the extended area of land to be developed are significant in either numerical or ariel terms. It agrees, therefore, that the appointed Commissioner's conclusion that the proposal would have a significant impact on an important settlement. Given this and in the context of other objections to the development limit around Maghera, the Commission concludes that if the appeal were allowed this would amount to pre-determining decisions about the scale and location of development around the settlement and in the preferable greenbelt, including the urban form of Maghera. These are matters which should be considered on a comprehensive basis at the public inquiry into the DMAP when objectors and other parties will have the opportunity to address all relevant issues. The Commission is satisfied that it would be premature to grant planning permission for this proposal as it would prejudice the outcome of the development plan process. The Commission finds that this factor should be given determining weight, notwithstanding that the site is within the development limited of the existing statutory MAP.

The issue of precedent was raised on behalf of the appellant and while not relevant in the context of the Commission's conclusion that the proposal would have a significant impact on an important settlement, it does arise in connection with the wider objections to the development limit of Maghera. The previous Commission decisions referred to on behalf of the appellant demonstrate that the circumstances of a particular case may limit precedent to the extent that determining weight may not be attached to the issue of prematurity related to the cumulative effect of the proposal. However, the Commission considers that the urban form argument advanced on behalf of the appellant would not, of itself, sufficiently limit the precedent to overcome the prematurity objection. In this connection the Commission does not accept that the proposal is readily comparable with the Dundrum or Cloughy cases where there were a number of factors which were considered to limit the precedent to an acceptable level."

The Planning (Northern Ireland) Order 1991.

"3. (1) The Department shall formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development.

(1A) The Department shall ensure that any such policy is in general conformity with the regional development strategy.

4. (1) The Department may at any time make a development plan for any area or alter, repeal or replace a development plan adopted by it for any area.

(1A) A development plan for an area must be in general conformity with the regional development strategy.

5. (1) Where the Department proposes to make, alter, repeal or replace a development plan for an area, it shall proceed in accordance with this Article, unless Article 6 (which provides a short procedure for certain alterations, etc) applies.

(2) The Department shall consult with the district council for the area or any part of the area to which the plan or proposed plan relates.

(3) The Department shall take such steps as will in its opinion secure –

(a) that adequate publicity is given, in the area to which the plan or proposed plan relates, to the Department's proposals or to the issues involved;

(b) that persons who may be expected to make representations to the Department about those proposals or issues are made aware that they are entitled to do so;

(c) that such persons are given an adequate opportunity to make such representations,

and the Department shall consider any representations made to them within the prescribed period.

7. The Department may cause a public local enquiry to be held by the Planning Appeals Commission for the purpose of considering objections to a development plan or to the alteration, repeal or replacement of a development plan."

Planning Policy Statement 1 – General Principles.

Development Plans

"35. Development plans may be in the form of area plans, local plans or subject plans. They apply the regional policies of the Department at the appropriate local level. Development plans inform the general public, statutory authorities, developers and other interested bodies of the policy framework and land use proposals that will be used to guide development decisions within their local area. Development plans provide a basis for rational and consistent decisions on planning applications and provide a measure of certainty about which types of development will and will not be permitted. Development plans are the primary means of evaluating and reconciling any potential conflict between the need for development and the need to protect the environment within particular areas.

Prematurity

46. Where a plan is under preparation or review it may be justifiable, in some circumstances, to refuse planning permission on the grounds of prematurity. This may be appropriate in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would prejudice the outcome of the plan process by pre-determining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. The proposal for development that has an impact on only a small area would rarely come into this category; but a refusal might be justifiable where a proposal would have a significant impact on an important settlement or a substantial area, with an identifiable character. Where there is a phasing policy in the development plan, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.

47. Other than in the circumstances described in paragraph 46, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications will continue to be considered in the light of current policy. However, account will also be taken of policies in emerging development plans that are going through the statutory procedures towards adoption. The weight to be attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached. For example -

• where a plan is at the preliminary proposal stage, with no early prospect of reaching draft plan stage, then refusal on prematurity ground would seldom be justified because of the lengthy delay this would impose on determining the future use of the land in question;

• where a plan is at the draft stage but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted to replace those in the existing plan. The converse may apply if there have been objections to relevant policies. However, much will depend on the nature of those objections and also whether there are representations in support of particular policies.

48 – Where planning permission is refused on grounds of prematurity the Department will give clear reasons as to how the grant of permission for the development concerned would prejudice the outcome of the development plan process.

Refusal of Planning Permission

59. The Department's guiding principle in determining planning applications is that development should be permitted, having regard to the development plan and all other material considerations, unless the proposed development will cause demonstrable harm to interests of acknowledged importance. In such cases the Department has power to refuse planning permission. Grounds for refusal will be clear, precise and give a full explanation of why the proposal is unacceptable to the Department."

The applicants' grounds for Judicial Review.

(1) Whether the PAC properly applied the approach to the issue of prematurity required by paras. 46 to 48 of PPSI;

(ii) The Commission misdirected itself as to the meaning in policy of the concept of prematurity and as to the evidential standard to be applied in reaching a finding of prematurity;

(iii) The Commission failed to apply or otherwise understand and/or misapplied the prevailing planning policy contained in PPS1 relating to the role of the existing development plan and to prematurity;

(2) Whether the approach taken by the PAC to the issue of prematurity and in particular the approach taken by it in relation to "cumulative effect" was in all respects a reasonable one, in the Wednesbury sense, on the evidence it had before it;

(i) The said decisions were in the Wednesbury sense unreasonable;

(iv) The Commission failed to require planning service to discharge the evidential onus of demonstrating harm to interests of acknowledged importance as stipulated by paragraph 59 of PPS1;

(v) There was no evidence which could reasonably justify the Commission's conclusions that the appeal proposals were premature, whether individually or cumulatively;

(vi) There was no evidence which could reasonably justify the Commission's conclusions that the appeal proposals were prejudicial to the development plan process;

(viii) There was no evidence which could reasonably justify the Commission's findings that what the Commission regarded as strategic objections to the draft Magherafelt Area Plan's proposals contributed to the appeal proposals being premature;

(3) Whether the PAC adopted a proper and rational approach to the issue of "precedent" in the particular circumstances of each appeal.

(x) The Commission in the Fortwilliam Road appeal acted irrationally and inconsistently by on the one hand accepting the appointed Commissioner's analysis that there was mere potential for a precedent to be set by allowing the appeal and on the other hand concluding on the same evidential basis that allowing the appeal would be likely to set a widespread precedent;

(xi) The Commission in the Fortwilliam Road appeal erred in accepting the analysis of the appointed Commissioner of the precedent effect of allowing the appeal was likely to be widespread, when that conclusion was specifically grounded on an absence of evidence about the site specific characteristics of other lands which also were the subject of draft plan objections.

(xii) The Commission in the Calmore Road appeal mis-directed itself in concluding that it would be premature to allow the appeal because to do so "could" pre-determine decisions about the extent and form of the development limit around Tobermore as proposed by the draft Magherafelt Area Plan;

(xiii) The Commission in the Calmore Road appeal mis-directed itself in concluding that it would be premature to allow the appeal notwithstanding its finding that no wide ranging precedent would be set by allowing the appeal;

(xiv) The Commission in the Calmore Road appeal acted irrationally in concluding that to allow the appeal would be premature because of the implications for other draft plan objection sites around Tobermore, as the evidence was that those sites consisted of sites previously approved on appeal and the first applicant lands at Fortwilliam Road, so that no wide ranging precedent could be set by allowing the appeal.

(xv) the Commission in the Maghera appeal mis-directed itself in assuming that a number of distinguishing characteristics was required to prevent unacceptable precedent and cumulative impact arising;

(xvi) The Commission in the Maghera appeal had no evidential basis for its conclusion that the urban form argument advanced by the first appellant would not, of itself, sufficiently limit precedent to overcome the prematurity objection, as there was no evidence of any other sites within Maghera to which the argument would apply.

(4) Whether the PAC properly approached the task facing a decision maker by virtue of the provisions of paragraphs 35, 46 to 48 and 59 of PPS1 which, in the circumstances, of the three appeals was to identify and explain any instances of specific harm which would be caused to the outcome of the development plan process if planning permission for the proposal in hand were to be granted.

(iv) The Commission failed to require planning service to discharge the evidential onus of demonstrating harm to interests of acknowledged importance as stipulated by para. 59 of PPS1;

(vii) The Commission failed to take into account the material consideration that the appeal proposals were not inconsistent with objections to the draft Magherafelt Area Plan proposals for Tobermore and Maghera respectfully;

(xix) The Commissioner acted inconsistently in its decisions regarding prematurity from a series of its previous decisions.

(5) Whether the PAC in the circumstances of each of the three appeals, and in particular having regard to the fact that in each case the development proposed was consistent with the statutory development plan, could reasonably give determining weight to its conclusion on the issue of prematurity and generally whether it provided proper and adequate reasons for its decisions to reject the appeals;

(xvii) There was no evidence that could reasonably justify the Commission giving determining weight to its finding of prematurity rather than to the fact that each appeal proposal was consistent with the statutory Magherafelt area plan;

(xviii) The Commission failed to give any adequate reasons for its conclusions that determining weight should be given to its finding of prematurity rather than to the fact that each appeal proposal was consistent with the statutory Magherafelt area plan.

Recent authorities in Northern Ireland.

(i) Paragraph 46 is primarily concerned with the circumstances in which refusal of planning permission may be justified; it is not designed to be prescriptive of the circumstances in which planning permission must be refused nor is it exhaustive of all the circumstances in which planning permission may be refused; the nature of planning policy is to give guidance to planners as to the general approach to be taken to regularly encountered planning problems; one should not parse too closely the wording of a particular paragraph of a planning policy statement in order to discover whether a planning decision falls four square within it; the purpose of such a statement is to provide general guidance and it is not designed to provide a set of immutable rules (page 95b-d).

(ii) There are two principal scenarios for the application of paragraph 46; the first is where it is concluded that the proposals are intrinsically substantial or have a cumulative effect which would prejudice the outcome of the plan process; this requires the decision maker to make some evaluation of the impact which the development would have on the plan process by prejudicing its outcome; this prejudice may be by the grant of planning permission having the effect of predetermining decisions on scale etc which are properly a matter for a decision in the area plan context; the second principal scenario is where an impact on a small area gives rise to a significant impact on an important settlement or a substantial area with an identifiable character (page 95 c - h).

(iii) Paragraph 47 contemplated that refusal of planning permission on the grounds of prematurity would usually but not always be confined to the circumstances outlined in paragraph 46; but the stage which the plan has reached will obviously be material in deciding whether to refuse on this ground; the question whether objections have been received would be important; the nature of the objections received and whether they are representations in support of the plan should be considered (page 96 c - d).

(iv) Neither the appointed member nor the PAC is confined in the consideration of whether the application should be refused on the ground of prematurity to an assessment of the precise correspondence of the circumstances affecting the application with the terms of paragraph 46; the conclusion reached by the Commission and the PAC that the application came within the terms of paragraph 46 could not be faulted, namely that the cumulative effect of the proposal was such as to prejudice the outcome of the plan process by pre-determining decisions about the scale of the lands for housing; the decision that the proposal was substantial in nature was likewise unimpeachable; the reasoning of the PAC in relation to paragraph 46 was sufficiently conveyed in its decision; similarly in relation to paragraph 47 the conclusions of the Commissioner and the PAC were beyond challenge (page 97d – 98g).

(v) In having regard to the nature of the objections it is not required of the appointed member that he should conduct a searching enquiry into the objections in order to assess their weight; such an exercise would be neither viable nor appropriate; to carry out an investigation of that type properly would require the involvement of the objectors to the proposals in the hearing of the appeal; that cannot have been the intended purpose of paragraph 47; it was sufficient that the appointed member and the PAC are aware that a number of people objected to the proposal for them to conclude that it would not be appropriate to allow the application for planning permission. (page 99a - d).

(i) The decision maker was bound to have regard to the timescale of events in relation to the development proposal and the PAC had proceeded on the basis that the emerging development plan was at a sufficiently advanced stage to trigger the prematurity issues and that decision could not be impugned (para. 36).

(ii) In relation to paragraph 46 of PPS1 the proposal could not be viewed in isolation from its cumulative effect taken with other possible developments that could flow from the grant of permission both in the village concerned and in other lands to be protected from house building under the draft plan (para. 37).

(iii) In relation to paragraph 47 of PPS1 the position of Kerr J in Re Lisburn Development Consortium's Application would be adopted and the Commissioner is not required to conduct a searching enquiry into the objections in order to assess their weight. In a planning application where initial prematurity arises the PAC must approach the question "in a more broad-brush way than would be the case in a long running and detailed inquiry." A prematurity decision must focus on the question of "whether and to what extent it would be appropriate and fair to hold the fort in the meantime" (para. 37).

(i) Precedent is always likely to loom large in any planning application or appeal if a pre-existing development that can be portrayed as a precedent is available (para. 28). The PAC was correct to conclude that precedent was a relevant issue to be considered in the determination of the appeal. The continuing relevance of precedent does not rob paragraph 58 of meaning. The considerations there outlined remain valid and pertinent and they can comfortably with the principle of precedent (para. 30).

(ii) The contention was rejected that the PAC's view of the precedent issue was a "mere fear or generalised concern" and having referred to the Commissioner's report it was stated that the PAC's conclusion on this issue "was not Wednesbury unreasonable; it was virtually inescapable" (para. 32).

The PAC approach to prematurity.

In relation to Calmore Road the PAC found that the proposed development was not substantial and again that Tobermore is not an important settlement. However approval of the proposal was found to be premature because of the objections to the draft proposals for Tobermore. Further the precedent arising from approval would apply to sites round Tobermore. The strategic objections to overall development limits in the wider area and the precedent effect around settlements in the area which were relied on by the PAC in relation to Fortwilliam Road were not relied on by the PAC in relation to Calmore Road.

In relation to Maghera the PAC found it to be an important settlement and that the proposed development would have a significant impact. This significant impact on an important settlement together with the objections to the proposed development limits around Maghera were the basis of the PAC's prematurity decision. Further the precedent effect arose in connection with the objections to the proposed development limit.

In all three cases the PAC found that there were not such circumstances as limited the precedent effect to an acceptable level.

The PAC approach to the evidence of prematurity and cumulative effect.

[34] The conclusions reached by the Commissioners and by the PAC on the issue of prematurity in the circumstances of each of the cases were well within the scope of their judgment. I am satisfied that in each case the decisions were not Wednesbury unreasonable. Further I am satisfied that there was sufficient evidence for the findings on prematurity and prejudice.

The PAC approach to precedent.

"It is clear to me that the debate in the public inquiry into dMAP in respect of Tobermore will cover not only the extent of the provision for housing in Tobermore but also which additional lands, if any, ought to be included within the development limit. To approve the appeal proposal in advance of this debate would be prejudicial to the outcome of such a debate and would set a precedent for other objection sites within Tobermore."

Paragraphs 46 and 47 of PPS1 are not stated in absolute terms. The absence of impact outside Tobermore, which is not classified as an important settlement, does not preclude the decision-maker from concluding that the conditions for a prematurity refusal had arisen. The Commissioner and the PAC so concluded and I am satisfied that that did not involve any misdirection nor was it irrational.

The PAC approach to the impact of the proposed development.

Further the applicants contend that the PAC failed to take into account that the proposals for development are not inconsistent with the objections to the draft plan. Again it is not the consistency or otherwise of the proposal and the objections that is in issue but the determination of the proposal before the inquiry deliberates on the draft plan.

The PAC reasons for refusal of planning permission.