High Court rejects Cornish development on prematurity grounds

Developer Wainhomes originally applied to Cornwall Council, which failed to decide on the application, for a residential development with up to 1,300 new homes and associated development. Wainhomes appealed against the Council's failure to decide the application.

The SoS dismissed Wainhomes' appeal in October 2011 because he argued that allowing the development to go ahead would "prejudge" the Council's Core Strategy.

"Allowing the appeal in advance of establishing the appropriate level of future housing  provision across Cornwall would pre-empt decisions that should properly be taken locally," the SOS said in the decision letter (88-page / 480KB PDF).

In its subsequent High Court action, Wainhomes argued that the SoS's decision to dismiss the appeal was inconsistent with a previous decision he made on prematurity, when considering an application for development in Bude, Cornwall.

The judge did not accept Wainhomes' argument and held that that case was materially different from the position in St Austell and could therefore not be compared to it.

"The proposed development in this case is nearly four times the size...and would equate to 25-40% of all the housing units likely to be needed in that part of Cornwall in the period ending in 2030," the judge said in his judgment.

Because of the material difference in the two cases, the judge held that "the Inspector was not required to explain why he took a different view as to prematurity in this case".

The SoS refused the appeal despite the lack of a five year supply of housing land in Cornwall, which meant that the "presumption in favour of the grant of permission applies".

In upholding the SoS's dismissal of the appeal, the judge said that "the decision letter in the present case is clear in stating that it found in favour of the claimant on the question of need, but against it on the overall balancing of consideration, and the conclusion on prematurity, because of the scale of the present decision."

The SoS has been legally challenged on two of his recent appeal dismissals, where he argued that to allow the appeal would prematurely predetermine the Council's development plan.

In February, the SoS agreed to a consent order to quash his refusal of CALA Homes' 2,000 home residential development at Barton Farm in Winchester, before the case was heard. Secretary of State Eric Pickles's decision against a scheme in Sandbach was also found to be unlawful.

However, as with this planning appeal, the Secretary of State may refuse developments on the basis that to allow them would predetermine decisions (such as, where large developments should take place) that should be made at area level in the Council's Core Strategy.

The SoS also refused a 1,200 home development in Newmarket on the grounds of prematurity in March 2012.