Permission

This page has cases dealing with:

  • Modification or revocation - financial implications - Supreme Court
  • Outline permission - "hybrid" applications
  • "Detailed planning permission"
  • Approval of reserved matters - new application?
  • Multiple permissions

Some of these cases were concerened with the use of the terms in overage clauses. They highlight the importance being very clear about it is intended those terms should mean in such clauses.

 

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”.

 

Outline planning permission

Overage clause 

Loxleigh Investments Limited v Dartford Borough Council

[2019] EWHC 1274 (Ch)

Summary

The ordinary meaning of “detailed planning permission” includes both approval of reserved matters under an earlier outline planning permission and permission to vary a condition of a previous planning permission.

Facts

In March 2013, the Council sold certain land to Loxleigh by a transfer that contained overage provisions.  These provided that overage would be payable if "any detailed planning permission" was granted for the construction of a residential dwelling or a commercial property over 3,000 ft2 on the land within 5 years after the date of the transfer.  The land already had outline planning permission for 5 houses.

In October 2013, Loxleigh applied for and was granted approval of reserved matters under the existing outline planning permission, and in September 2015, they were granted permission to vary condition 4 of the 2013 permission.  Loxleigh thereby obtained permission to build 4 houses over 3,000 ft2 ("the Houses") on the following dates:

  • October 2013 - houses 2 and 3;
  • September 2015 – houses 1 and 4.

Issue

The Council argued that the 2013 approval of details and the 2015 permission to vary condition were each "detailed planning permission" within the meaning of the overage provisions, triggering liability to pay overage in respect of the relevant Houses. Loxleigh disagreed on the basis that no detailed planning permission had been granted after the date of the transfer.  It was agreed that house 5 did not trigger the overage provisions, as its GIA was less than 3,000 ft2.

Decision

In a summary judgment, Master Clark held that both the approval of reserved matters and the permission to vary the condition constituted “detailed planning permission” and so gave rise to the obligation to pay overage.

He stated at Para 36 and 41:

“I accept the Council's counsel's submission that "detailed planning permission" is apt to describe, and is in fact used in legal textbooks and decisions of the court to refer to approvals and permissions granted pursuant to an outline planning permission…In the absence of a definition of the term in the relevant legislation, this constitutes the ordinary and natural meaning of the term. Further support for this meaning is found in the 2015 permission itself, which refers to the 2013 permission as a "planning permission…I also reject Loxleigh's counsel's submission that only the Outline Permission granted permission for the construction of the Units. The permission granted by it was a conditional permission, subject to approval of the Reserved Matters, and did not therefore permit construction to begin until approval had been obtained.…".

Comment

This case highlights the importance of clearly defining terms in overage provisions.

 

Approval of Reserved Matters

New application for permission?

Cozens-Smith v Bellway Homes Limited

[2019] EWHC 3222 (Ch)

Summary

An application for the approval of reserved matters does not amount to a new application for planning permission.

Facts

In July 2016, four freehold owners of some land, one of whom was the Claimant, had obtained outline planning permission for the construction of 75 dwellings on the land.

The outline permission provided that the approval of four reserved matters, namely layout, scale, landscaping and appearance, would have to be obtained from the local planning authority before any development was begun.

In December 2016, the owners sold the land, less a small strip, to the Defendant for £9.65 million. The reserved land formed a strip of land 0.25m wide running along the northern and eastern boundaries of the site (the strip).

The Claimant was now the sole owner of the strip. The land was sold with the benefit of the outline planning permission. The term "planning permission" was defined in the transfer as "planning permission reference WA/2015/0478 as may be amended or varied from time to time". The reference WA/2015/0478 was the reference given to the outline permission. The developer was given certain rights in the transfer, including the right to go on to the strip and to build upon it.

The Claimant covenanted, among other things, to "comply with the conditions referred to in the Planning Permission insofar as they relate to the Retained Land", i.e. the strip.

On 31 March 2017, the developer made an application for approval of reserved matters in respect of the site.

On 28 July 2017, the local planning authority granted "planning permission" for the development specified in that application.  The permission included a schedule setting out 10 conditions, one of which provided for the laying out of "pedestrian and cycle links ... in accordance with the approved plans". Pursuant to that condition, the developer constructed a footpath on the site which crossed the strip. 

The Claimant sought declarations that he was not obliged to permit the construction of the footpath and, in the alternative, that he was not obliged to grant a right of way along it. 

The Defendant argued that the footpath had been constructed pursuant to its rights under the transfer, which included the reserved matters approved by the local planning authority on 28 July 2017. The Claimant argued that the local planning authority's decision of 28 July 2017 amounted to a new grant of planning permission, not an approval of reserved matters under the outline planning permission.

The Defendant made an application for the striking out and/or summary judgment in respect of the Claimant’s claim for declarations

Issue

Did planning permission include only the outline planning permission dated 1 July 2016 or the approval of reserved matters ("the disputed ARM") dated 28 July 2017 as well?

Decision

The definition of "planning permission" in the transfer included not only the outline planning permission but also the disputed ARM.

The disputed ARM was an approval of reserved matters in respect of the outline permission, not a grant of new planning permission pursuant to R v Bradford upon Avon UDC ex p Boulton [1964] 1 WLR 1136.

The application pertaining to the disputed ARM was held to be an application for an approval of reserved matters and it was clearly described to be so on its face.  It was held that, on the Claimant's construction, the natural implication was that the Defendant purchased the site with the benefit of outline planning permission for £9.65million with the intention of building the development but could not lawfully implement the OPP because the disputed approval of reserved matters did not form part of the definition of planning permission in the transfer. This, it was held, was clearly wrong.

The claim for the first declaration, i.e. that he was not obliged to permit the construction of the footpath was doomed to fail. The obligation to permit the construction of the footpath was founded on the rights granted to the developer in the transfer for the benefit of the site.

The claimant and his co-owners had expressly covenanted with the Defendant for themselves and their successors-in-title in respect of the strip to comply with the conditions referred to in the planning permission insofar as they related to the strip. The developer had constructed the footpath in accordance with the outline planning permission and the disputed ARM.

The local authority had confirmed that the pedestrian and cycle links complied with the approved plans, and the head of planning services had written to the Defendant confirming that the relevant conditions in the disputed ARM had been complied with.

The second declaration sought was also doomed to fail on the basis that the Defendant never asserted that it had the right to compel the Claimant to grant a right of way over the footpath., This was not a condition in either the outline planning permission or the disputed ARM.  The Court would therefore not grant an entirely academic declaration.

Multiple permissions

Implementation

Hillside Parks Ltd v Snowdonia National Park Authority

[2020] EWCA Civ 1440

Summary

A planning permission granted in 1967 was no longer capable of further implementation because of subsequent piecemeal development which was at variance with the original permission.

Facts

This unusual case has a relatively complex history. The landowner sought a declaration that a planning permission granted in 1967 remained valid and capable of further implementation. The 1967 permission was for 401 dwellings in accordance with a masterplan. Some development (pursuant to 8 further grants of planning permission) had taken place since 1967, but not much of the overall site.

In 1987 a dispute arose with the Local Planning Authority and the then landowner went to the High Court and sought a declaration that the 1967 permission had been validly implemented. The judge ruled in favour of the landowner.

From 1987 onwards, 8 further permissions were granted for departures from the initial (1967) masterplan (the Court of Appeal judgment doesn’t record whether these permissions were variation applications under section 73 TCPA 1990, or full section 70 planning permission applications). These permissions were implemented.

Subsequently (more recently), the Local Planning Authority took the position that the 1967 permission could not be built out any further because of the principle found in the case of Pilkington v SSE [1973] 1 WLR 1527 – when there are two permissions covering the same land and the second one means the first one can no longer be developed in accordance with the terms, then the first one is no longer capable of being relied upon.

The landowner sought a declaration that the Local Planning Authority was not entitled to rely on the Pilkington principle in this way because of res judicata – (inability to re-litigate the point which had already been determined: the validity of future implementation of the 1967 permission – and that this point could have been taken by the predecessor Local Planning Authority in the High Court in 1987, but it wasn’t, and couldn’t be raised now.

Issues

  1. Whether res judicata prevented the Local Planning Authority from raising the Pilkington argument that the 1967 permission was incapable of implementation because of development which had taken place subsequently, and
  1. Whether in accordance with Pilkington the 1967 permission was no longer capable of implementation/

First instance

The High Court rejected the claim by the landowner – that although the 1987 judgment was not to be doubted, the development which had occurred subsequently rendered the development granted by the 1967 a physical impossibility and future development pursuant to that 1967 permission would therefore not be lawful.

Decision on appeal

The appeal was dismissed.

The Court of Appeal disagreed with the landowner, and held that res judicata was not absolute, and the public interest in not permitting development in the National Park outweighed the landowner’s private interest.

As to the substance of the Pilkington argument relied on by the Local Planning Authority, the Court of Appeal agreed with the Local Planning Authority that, having regard to the evidence, the subsequent (post-1987) permissions which were at variance with the 1967 permission meant that that original permission could not be built out lawfully.

Comment

It is not clear that the treatment of the res judicata point in this case was correct since it appears to introduce merits-related planning considerations into the strictly legal question in play.

Furthermore, in dealing with the Pilkington issue, the Court of Appeal made certain comments noting that planning permissions should be interpreted as requiring to be built out as a whole, with reference to case law such as Sage v SSETR [2003] UKHL 22.

The difficulty is that the reality of much modern (especially larger scale) development involves a main overarching permission, with subsequent smaller permissions which tweak the detail of individual parts of a site (and including s.73 applications to deal with any necessary variation or removal of conditions).

The possible implication from the judgment in this case is that those subsequent so-called ‘drop-in’ applications would mean that the parts of the main overarching permission unaffected in practical and physical terms would nevertheless be rendered incapable of implementation. If this is the correct reading of the judgment, it would be contrary to current common practice and would create some serious challenges for developers of larger schemes, especially those which are multi-phase.

It should be noted that the landowner has sought leave to appeal to the Supreme Court. 

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