Property Law uk

Maintained by Gary Webber

Permission

This page has cases dealing with:
  • Modification or revocation - financial implications - Supreme Court
  • Outline permission - "hybrid" applications

Modification or revocation

Financial implications

Health and Safety Executive v Wolverhampton CC
[2012] UKSC 34

Summary

When determining whether to modify or revoke planning permissions local planning authorities are entitled to consider the financial implications of doing so.

Facts

The Council granted planning permission to a developer for the construction of four blocks of student accommodation. They were to be situated around 100 metres away from an LPG storage facility, which was operated by a third party. The Health and Safety Executive suggested that planning permission should be refused on safety grounds. In the event it was not. Such were their concerns that when the developer started building out the site the HSE invited the Council to modify or revoke the planning permission. The Council did not. One reason was the amount of compensation that they would be required to pay the developer under s107 of the of the Town and Country Planning Act 1990 (1990 Act) if they were to modify or revoke the permission under s97 of the 1990 Act.

Decision

Lord Carnwath gave the agreed judgement of the Supreme Court. He held that the starting point was that in deciding whether to exercise a discretionary power to achieve a public objective, a public authority, is entitled to - and usually must - take into account of the cost to the public of so doing, at least to the extent of considering (i) whether the cost is proportionate to the aim to be achieved, and (ii) any more economic ways of achieving the same objective.

LPAs can act under s 97 if they are satisfied that it would be “expedient” to do so. Expedient means that the action should be appropriate in the circumstances. Where one of the circumstances is that a liability to pay compensation is created, that becomes a factor that may be considered. Lord Carnwath intimated that although it was correctly decided on its facts the decision of Richards J. in Alnick DC v SSETR [2000] 79 P & CR 130 is incorrect insofar as it suggests that financial considerations are immaterial under s97.

Lord Carnwath agreed with the proposition that the term “material considerations” must have a consistent meaning across all of the enactments which constitute the planning code. He held at [49] that:
    “Sufficient consistency is given to the expression if the word ‘material considerations’ is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.”
There was no inconsistency between the exclusion of financial consequences as a material consideration when considering whether to grant planning permission under s70 of the Act and its inclusion when considering whether to revoke a permission under the different statutory context of section 97.

First, under s. 70 the LPA has a duty to act. It must either grant or refuse planning permission. By contrast under s97 the LPA may act but it is entitled to do nothing. Since the LPAs choice is narrower under s70 the range of considerations that are material to that choice is more limited.

Secondly, the determination of planning applications usually has no direct cost consequences for the LPA. By contrast s97 provides a mechanism for LPAs to “buy back” planning permissions. Financial considerations are therefore relevant in the latter but not the former case.

Comment

The decision in Wolverhampton does not alter the position that financial considerations are not material in the context of determining applications for planning permission. The principle that planning permissions cannot be bought and sold remains intact. The Localism Act 2011, insofar as it has amended s70 of the 1990 Act, has not altered this.


Outline permissions

"Hybrid" applications

Elliott v Secretary of State for Communities and Local Government
[2013] EWCA Civ 703

Summary

The Court of Appeal considered and approved the use of “hybrid applications” whereby certain matters contained within a single application are given full planning permission and others outline, and held that outline permissions did not have to relate solely to buildings.

Facts

The Secretary of State granted planning permission for the redevelopment of a building in deteriorating condition. The application for planning permission was a hybrid application for full permission in respect of a proposed sports centre and surrounding area, and outline permission for the rest of the site. There was evidence that bats traversed the park, and that the proposed loss of trees would have a minor adverse effect by way of harm to their flight lines and habitats. Nonetheless, the Inspector granted permission after finding that the scheme would result in a minor beneficial impact to bats, and the scheme would bring forward other substantial benefits that he noted the Secretary of State might consider to constitute Imperative Reasons of Overriding Public Importance (IROPI). The Secretary of State did not refer to IROPI in granting permission. In light of the works proposed, a community association (C) challenged the Secretary of State’s jurisdiction to grant planning permission for such an application. C appealed to the Court of Appeal.

Issues

An issue on appeal concerned the interpretation of provisions in the Town and Country Planning (General Development Procedure) Order 1995 relating to outline planning permissions (which are identical to those in the subsequent Town and Country Planning (Development Management Procedure) Order 2010. Art 1(2) of the GPDO defined “outline planning permission” as “a planning permission for the erection of a building …”. The Applicant contended that the matters covered by the outline part of the application fell outside of the definition of “building” in Art 1(2) of the GPDO, and that those matters could not be reserved matters as they did not fairly and reasonably relate to buildings.

Decision

The Court of Appeal dismissed the appeal. The proposals were for a comprehensive redevelopment scheme, which included buildings, and that parts of the scheme which were not buildings were integral to the whole scheme. In those circumstances, in light of the wide definition of “building” and the scope of “reserved matters” as including matters such as landscaping, the statutory provisions in the GPDO were to be read in such a way as to accommodate such comprehensive schemes. The Court emphasised that it could not be right to require comprehensive schemes either to be fully developed, or to be packaged as a series of separate outline applications for buildings only. Further, it was not necessary for an outline application to also have as “its primary and overriding purpose the construction of a building or buildings”. Instead, outline matters may include broader planning purposes that are “not merely subsidiary details relating strictly to buildings themselves”.


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