Unlawful Deferral in Planning Decisions

A planning authority may only refuse an application on matters it has lawfully assessed and resolved at the point of decision.

Where an authority postpones the assessment of a decision-critical issue, but still relies on that issue to justify refusal, the decision may involve unlawful deferral.

This page explains what unlawful deferral is, how it differs from lawful use of conditions or later stages, and how it is identified in practice.

What is unlawful deferral?

Unlawful deferral occurs where a planning authority:

acknowledges that an issue has not been properly assessed, analysed, or resolved;
indicates that assessment would occur later (for example through conditions, reserved matters, or future strategies); and
nevertheless relies on that unresolved issue as a reason for refusal.

The core problem is not postponement itself, but reliance on something that has not yet been determined.

Lawful deferral vs unlawful deferral

Not all deferral is unlawful. The distinction turns on whether the deferred matter is fundamental to the decision.

Deferral may be lawful where:

the issue is genuinely minor or technical;
it does not go to the acceptability of the development in principle; and
the authority has already concluded, based on evidence, that the development is acceptable subject to later detail.

In those cases, deferral supports implementation — it does not replace assessment.

Deferral becomes unlawful where:

the authority has not assessed the issue;
the outcome of that assessment is unknown; and
the authority nevertheless treats the issue as a reason to refuse.

In effect, the authority is saying: “We do not yet know whether this issue can be resolved — therefore we refuse.”

That is not lawful decision-making.

Common unlawful deferral patterns

Unlawful deferral rarely appears explicitly. It usually surfaces through reasoning gaps.

Typical indicators include:

Statements that impacts “have not been assessed” but are relied upon in refusal.
Assertions that matters “would need to be addressed” without determining whether they can be addressed.
Reliance on conditions to resolve issues that go to acceptability rather than detail.
References to future consultations or strategies used to justify refusal.
Committee reports that identify uncertainty but do not resolve it.

Where uncertainty is relied upon as a negative conclusion, the assessment has been deferred unlawfully.

Conditions and unlawful deferral

A frequent source of error is the misuse of planning conditions.

Conditions may control or refine development. They may not be used to replace assessment.

If a condition is relied upon to resolve safety impacts, capacity constraints, feasibility of mitigation, or compliance with policy requirements — without those matters having first been assessed — the authority has deferred the decision it was required to make.

That is not a lawful use of conditions.

Reserved matters and outline applications

Unlawful deferral also arises in outline cases where authorities rely on reserved matters to avoid making a decision they are required to make at outline stage.

While outline applications permit deferral of detail, they do not permit deferral of:

whether impacts are acceptable in principle;
whether mitigation is achievable; or
whether policy requirements can be met.

If refusal depends on uncertainty that could only be resolved by assessment, deferring that assessment is unlawful.

How unlawful deferral is assessed in practice

Under time pressure, advisers typically test unlawful deferral by asking:

What issue is relied upon in the refusal reason?
Was that issue actually assessed before the decision?
Does the reasoning record show a concluded evaluation?
Or does it show postponement, uncertainty, or intention to assess later?

If the authority has not resolved the issue but relies on it, the deferral is unlawful.

This assessment is procedural. It does not require arguing planning merits.

Relationship to decision-stage evidence failures

Unlawful deferral is closely linked to decision-stage evidence failure.

Evidence failure focuses on what is missing.
Unlawful deferral focuses on what has been postponed.

In many cases, the same facts support both descriptions.

The important point is that a decision cannot lawfully rely on an unresolved matter.

What this analysis does not determine

This analysis does not:

decide whether a court would grant relief;
determine appeal prospects;
assess planning balance or outcomes; or
replace legal judgement.

It identifies whether the authority discharged its decision-making duty at the time it refused.

The core test

Was the issue relied upon actually assessed and resolved, or was it postponed to a later stage?

If it was postponed, reliance on it is procedurally unsafe.

PGAT

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