The High Court in Pearl, R (on the application of) v Maldon District Council & Anor [2018] EWHC 212 (Admin) recently had the opportunity to consider the limitations and procedural obligations for local planning authorities in considering approval of reserved matters. In particular, it addressed the difference between ‘scale’ and ‘layout’ when only the former is reserved for approval.
The case concerned an outline planning permission granted on appeal for inter alia the ‘erection of single dwellinghouse…in accordance with the terms of the application…subject to the conditions in Annex A’ of the inspector’s decision letter. The matters reserved for approval were stated in the decision letter as ‘appearance, landscaping and scale’. There was also imposed a condition that the development permitted must be carried out in accordance with a list of approved plans. Significantly, one of the approved plans included various measurements of the proposed dwellinghouse to the site boundaries (“the outline site plan”).
The developer subsequently submitted an application for approval of the reserved matters. The principle issue in contention was that such application (through its various amended drawings) was for a dwellinghouse of a larger scale so as to exceed the measurements in the outline site plan. Reserved matters were approved by the council under delegated authority of its Chief Executive.
Layout v Scale
A principle contention of the applicant to the judicial review proceedings was that, by approving drawings which differed from the dwellinghouse to boundary measurements in the outline site plan, the council wrongfully considered and approved matters of ‘layout’ which was not reserved in the outline permission.
The scope of outline permissions and reserved matters approval is governed by article 2 of the Town and Country Planning (Development Management Procedure)(England) Order 2015 (“the DMPO”). It limits reserved matters approval to issues of: access; appearance; landscaping; layout; and scale. It provides the following definitions:
- ‘layout’ means the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development
- ‘scale’ means the height, width and length of each building proposed within the development in relation to its surroundings
The High Court found that as one could be approved with the other reserved, under the GPDO, it must follow that a change in one at reserved matters approval may not conflict with the interrelationship between the two concepts assessed against the development (as a whole) by way of planning judgement. The legal question for the Local Authority in the context of the case being:
“whether the increased footprint, and different location for the house in relation to the boundaries of the main site area, proposed resulted in an arrangement of buildings, routes and open spaces within the site and with buildings and spaces outside it that involved a material departure from the arrangement shown on the [outline] Site Plan. The answer to that question involves a matter of planning judgment.
Such a judgment might be informed by a comparison between the ratio of the footprints of the house shown on each plan to the main site area. But it would not necessarily be determined by it. It might also need to consider the significance to be attached to the various dimensions marked on the [outline] Site Plan in the context of the nature of the development, the site to which the outline planning permission related and its surroundings”.
The Decision
The High Court ultimately did not need to determine whether the council correctly applied the above legal question to the submitted approval of reserved matters. This was because the decision was quashed due to inadequate reasons of the Chief Executive’s decision as required inter alia by the Openness of Local Government Bodies Regulations 2014 (i.e. there being insufficient evidence as to what reports the Chief Executive reviewed and the reasons for her decision). Therefore, the reserved matters approval was quashed and remitted back to the council to reconsider the application (pursuant to the required legal question with adequate reasons).
Lesson: where outline planning permission is granted reserving only some of the permissible issues for reserved matters’ approval then care should be taken in assessing the interrelationship between (a) such details granted and (b) whether the details submitted for reserved matters’ approval constitutes a material departure from the former within the context of the nature of the development (its site and surroundings), as part of the planning judgement of the decision maker.
