The Emerging Plan as a Material Consideration


Planning law requires that decisions are taken in accordance with the development plan unless material considerations indicate otherwise. The recent Court of Session judgement in The Trustees of the late Mrs Pilkington v The Scottish Ministers considers the weight that may be attached to an emerging Local Development Plan (LDP) and prematurity as material considerations.

The Facts

The case concerns the refusal of an application for planning permission in principle for a mixed use development, to include 1,500 houses, on the outskirts of Perth. Much of the application site (the Site) was allocated for housing and employment use in the adopted local plan, dating from 1996. A new LDP was being prepared by Perth and Kinross Council (the Planning Authority). On 4 January 2012, when the Planning Authority refused planning permission, part of the Site was allocated for housing in the emerging LDP. On 10 January 2012, a week after refusing the application, the Planning Authority approved the proposed LDP subject to removal of the Site from the proposed housing allocations.

On appeal the Scottish Government's Reporter upheld the refusal. The Reporter found the application to comply with the adopted local plan. However, the Site was no longer allocated for housing in the Council's proposed LDP, although this plan had not yet been examined or adopted.

Two elements of the appeal decision were particularly significant. First, the Reporter placed considerable weight on the content of the proposed LDP, finding that this consideration outweighed conformity with the adopted but dated local plan. Secondly, the Reporter found that it would be premature to grant the planning permission before the outcome of the LDP process was known. To do so would predetermine where a large proportion of Perth's strategic housing allocation would be located without the benefit of examining the relative benefits of all other potential sites in the area. The importance of making such strategic allocations through the LDP process overrode the developer's immediate wish to develop the Site.

The Court judgement

The developer appealed the Reporter's decision on various grounds but the Court dismissed the appeal. In particular, the Court found that the Reporter was entitled to conclude that the proposed LDP was a material consideration. Having regard to the stage reached in the statutory plan-making process she was also entitled to consider the content of the proposed LDP, excluding the Site from housing allocations, to be the Planning Authority's "settled view" and to ascribe weight accordingly. The Court rejected the developer's submission that removal of the Site from the housing allocations was simply a consequence of the Planning Authority's refusal of the planning application and not based on any relevant planning considerations.

As regards prematurity, the Court held that the Reporter was entitled to balance the extant local plan against the content and progress of the LDP. While recognising the priority afforded to a plan-led system, it was legitimate to take into account the wider public interest in the outcome of the statutory LDP process. In this instance, having regard to the scale, importance and impact of the proposed development in the context of overall future housing allocations, it was legitimate for the Reporter to conclude that the application was premature.


The circumstances of this case may be somewhat unusual, in that the Planning Authority's refusal of planning permission was followed swiftly by a decision to remove the Site from housing allocations in the proposed LDP. However, the case is a timely reminder that development planning and management processes can interact in different ways. Planning authorities are now required to replace LDPs on a rolling 5 year cycle and the potential for a proposed LDP or the issue of prematurity to be material is enhanced. Planning authorities and developers should bear in mind that:

The content of an emerging plan can be a material consideration and, in appropriate circumstances, can outweigh the provisions of an adopted plan. This may be particularly so where, as in this case, the adopted plan is dated.
Genuine prejudice to an emerging plan can be a valid reason to defer determination or refuse planning permission.
The fact that a plan is in the process of preparation is not of itself a good reason to defer determination or refuse planning permission. Planning authorities have a duty to determine applications and not to refuse applications unless proper planning reasons can be shown.
Even if approval will predetermine part of the emerging plan this does not require that a planning application is refused. The planning authority must weigh up the matter but can decide that the application should be approved notwithstanding prejudice to the emerging plan.
If an application is refused as premature the planning authority must have identified and considered how and to what extent approval would prejudice the emerging plan and why the subject-matter of the application should be left to the development planning process.
The significance of the proposed development within the emerging plan will be a major consideration.
The stage reached in the plan making process is also significant. The more advanced the plan-making process, the stronger the argument that more weight should be given to the proposed plan or that an approval would be premature.
The converse will also apply. Where it can be shown that a proposed plan or prematurity are material to a planning application, a failure to take these considerations into account may open a decision to challenge.