Save Our Parkland Appeal Ltd. R (on the application of) v East Devon District Council

Judicial review of a planning decision concerns legality, not the merits or weight given to material considerations. A planning authority may depart from an existing development-plan policy where material considerations justify doing so. Emerging policy may be considered, but its weight depends on its stage of preparation.

Refusal on prematurity grounds is seldom justified where a development-plan document is at an early consultation stage and has no early prospect of examination. Legitimate expectation requires a representation on which the claimant could reasonably rely, or an established regular practice. Statutory consultation duties concerning plan preparation do not, without more, restrict the determination of planning applications.

East Devon District Council granted outline planning permission for up to 400 homes at Cloakham Lawns, Axminster. The site lay outside the built-up area boundary and the proposed development conflicted with the adopted local-plan countryside policy.

The claimant challenged the permission on the grounds that the Council had failed to comply with the statutory planning balance and had unlawfully pre-empted the emerging Local Development Framework process. Permission to proceed was granted on those grounds, while a third ground concerning section 70(2) was refused and abandoned. The central issues were whether the Council had lawfully considered the development plan and material considerations, and whether the emerging plan or consultation process created a legitimate expectation that permission would not be granted.

1. Claim dismissed. The Council had lawfully considered the adopted development plan, all material considerations and the conflict with policy S5. It was entitled to conclude that the benefits of the proposal, including affordable housing and the retention of the sports facility, outweighed the policy objection.
2. Sections 70(2) of the Town and Country Planning Act 1990 and 38(6) of the Planning and Compulsory Purchase Act 2004 required the decision-maker to have regard to the development plan and material considerations, and to decide in accordance with the plan unless material considerations indicated otherwise. They did not require adherence to the existing policy irrespective of other considerations.
3. The officer’s report adequately identified the policy conflict, the benefits of the proposal, the objections and the limited weight attributable to the emerging Core Strategy. Applying the principles in Newsmith Stainless Ltd, [2001] EWHC Admin 74, Tesco Stores Limited, [1995] 1WLR 759 (HL), Selby District Council ex parte Oxton Farms, [1997] EG 60 (CS) (CA, 18 April 1997), and Mendip District Council ex parte Fabre, (2000) 80 P&CR 500, the report was not materially misleading and the planning judgment belonged to the Council.
4. The emerging plan was at an early preferred-options consultation stage, with no early prospect of submission for examination. Government guidance indicated that refusal on prematurity grounds would seldom be justified in those circumstances. The Council therefore remained under a continuing duty to determine the application under existing policy and other material considerations.
5. No legitimate expectation arose. Regulation 25 of the Town and Country Planning (Local Development) (England) Regulations 2004 concerned participation in preparing a development-plan document and said nothing about determining planning applications. Neither it nor the draft Statement of Community Involvement contained an unambiguous representation that planning permission would be withheld. The principles in Rowland v Environment Agency, [2005] Ch 1, and R (Godfrey) v London Borough of Southwark, [2012] EWCA Civ 500, were not satisfied.

The judgment was a first-instance judicial review decision. Permission to proceed had previously been granted on grounds 1 and 2, while permission on ground 3 was refused; ground 3 was later abandoned. The claim was dismissed on both remaining grounds.