Town and country planning–Outline permission given for comprehensive development–Detailed proposals for first phase approved–Difficulties subsequently from refusal of listed building consent–Second application for approval of reserved matters in first phase made with certain variations from original application–Approval refused and fresh outline application required–Secretary of State’s ruling quoted that reserved matters cannot be varied by further submissions under same outline consent–Ruling disapproved by Court of Appeal–Variations can be made on subsequent applications and indeed approval of reserved matters can be sought piecemeal–Decision of Sir Douglas Frank in favour of developers upheld
This was an
appeal by Manchester City Council from a decision by Sir Douglas Frank QC (see
(1976) 242 EG 209), sitting as a deputy judge of the Queen’s Bench Division,
granting declarations in favour of the plaintiffs, developers, that an
application for approval of matters reserved under an outline planning
permission was valid and that Manchester City Council, the defendant planning
authority, were not justified in rejecting the application for approval and
requiring a fresh application for outline planning permission.
I Glidewell QC
and D G Nowell (instructed by Sharpe, Pritchard & Co, agents for L
Boardman, Solicitors’ Department, Manchester City Council) appeared on behalf
of the appellants; Graham Eyre QC and M Spence (instructed by Saunders, Leigh
& Dobin) represented the respondents.
Giving
judgment LORD DENNING MR said: In the centre of Manchester there is a big block
of building covering some eight acres. It is ripe for development. It is
opposite the Central Station and the Midland Hotel. It is called the Lower Mosley
Street area. In 1972 some developers called Heron Corporation Ltd proposed to
develop it. They made an application to the Manchester City Corporation for
outline planning permission. Their proposal was to demolish all the existing
buildings and to replace them by offices, shops, an hotel, car parks and
residential accommodation. They prepared a suggested lay-out: and planned for
the work to be done in several phases, each phase being done separately one
after the other. The proposal was welcomed by the corporation. They were much
in favour of some new development. But they wanted it fitted in with a new city
centre road which they had in mind. So the corporation wanted a house called
Chepstow House to be demolished to make way for the new road.
On September 5
1973 the corporation granted outline planning permission for the whole site. It
permitted comprehensive development of it after the demolition of existing
buildings. This permission did not extend to the proposed lay-out or phasing.
This was left to be dealt with later when the detailed plans were submitted.
This was covered by an express condition no 5 which said: ‘The permission
relates only to the approval in principle of the development of the whole of
the application site and in no way implies approval of the development of any
part of the site other than as part of an overall phased programme to be
approved by the council. The detailed plans shall include the phasing proposed
together with details of the timing of each phase.’ There was another condition which said: ‘The
total gross floorspace of all uses in the development shall not exceed 92,905 m2
(1m sq ft).’
In December
1973 the developers submitted detailed plans for the first phase. It was to
erect an hotel opposite the
the first phase of the development leaving the other phases till later. On
February 6 1974 the Manchester Corporation approved the detailed proposal for a
new hotel there. It was made subject, however, to this condition: ‘The approval
hereby granted in no way implies approval of the hotel development other than
as part of the agreed overall phasing construction programme for the
development of the whole site as indicated on Drawing no 1978/2/118A.’
Although it
looked as if all was set fair for the first phase, there was a cloud on the
horizon. Things were happening which might hinder the proposed development a
good deal. It was this. Some of the houses in the area–not those in the first
phase–became ‘listed’ buildings. In April 1974 they were included in the list
of buildings of special architectural and historic interest under section 54 of
the 1971 Act. They were five houses in Oxford Street, and in addition Chepstow
House in Chepstow Street. They were only built about the year 1900, but were
considered by the environmentalists to be worth preserving. This listing put
the development plans into disarray. It meant that the developers could not
demolish the listed buildings without special consent. The developers
immediately applied for ‘listed building consent’ so as to demolish the five
Oxford Street houses. But the city corporation in October 1974 refused and gave
this reason: ‘This building which is included in the list of buildings of
architectural or historic interest is an outstanding example of the ‘Art
Nouveau’ style of architecture and should be retained.’
The developers
were thus faced with a problem. They had to revise their development plans so
as to retain the listed buildings within the new complex of buildings there. It
meant altering the lay-out and the phasing. For instance, Chepstow House could
not be demolished. It had to be retained. This meant more floorspace than had
been previously estimated. And the five Oxford Street houses could not be
demolished to make room for an entertainment centre there. They had to be
retained and the entertainment centre placed elsewhere.
Faced with
this new problem, the developers made a fresh lay-out and a fresh phasing. The
various offices, shops, hotel, and so forth, were placed in different positions
from the original lay-out: and the phasing was different. Having got this fresh
plan prepared, the developers in August 1975 applied for approval of the first
phase of it. They were very anxious to retain their original grant of outline
planning permission–for reasons which I will explain later–but they wanted to
alter the details. So they applied under this heading for ‘Approval of reserved
matters following grant of outline permission.’
In particular they applied for an hotel in a new position different from
the original situation. It was to be opposite the far end of the Great Central
Station instead of in the middle of it. And it was to be much smaller. Only
four storeys instead of 14 storeys: with 24 service flats. There were to be
conference rooms and so forth. At the same time the developers appended to this
application a plan showing the amended site lay-out and the new anticipated
phasing of development.
The
corporation did not give their approval to this change of plan. They made three
objections which they set out in a letter of March 25 1976. Their main point
was that the original grant of outline planning permission did not cover this
new application. The corporation said that the developers ought to apply for a
new grant of outline planning permission. These were the three principal
factors that they mentioned. First, the corporation said that it was a
condition of the original outline planning permission that the floorspace
should not exceed 1m sq ft, whereas the revised lay-out showed a floorspace 5
per cent or 10 per cent more–because Chepstow House had to be retained. Second,
the corporation said that on granting the original outline planning permission
they contemplated that all the buildings within the site should be demolished:
whereas the revised lay-out proposed the retention of Chepstow House and the
five Oxford Street houses, which significantly altered the proposal. Third, the
corporation drew attention to an opinion expressed by the Secretary of State.
It had just been reported in the Journal of Planning Law for September
1975 at pp 555-556. His view was that ‘once reserved matters have been approved
following a grant of outline planning permission, they cannot be revised or
varied by a further submission of reserved matters under the same outline
consent.’
Faced with
these objections, the developers on March 26 1976 took out an originating
summons seeking a declaration in effect that this application for approval of
reserved matters was a valid application: and that it was not necessary for
them to apply afresh for a new grant of outline planning permission. On July 30
1976 Sir Douglas Frank decided in favour of the developers. The corporation
appeal to this court.
I said earlier
that the developers wished to retain their original grant of outline planning
permission: and did not wish to have to apply for a new outline planning
permission. So they deliberately confined their application to ‘approval of
reserved matters.’ There were good
reasons for this. An application for outline planning permission is in law an
‘application for planning permission.’
It has to comply with all the requirements of the General Development
Order, and in particular article 5 which requires it to be on a special form
and accompanied by all the plans and drawings and in accordance with the
notices under the Act, and the various consultations. Whereas an application
for ‘approval of reserved matters’ need only be in writing under article 6 and
without all the various notices and consultations. But apart from these there
are often important consequences following on a grant of outline planning
permission. Once granted, an outline permission is a valuable commodity which
is annexed to the land. It runs with the land from purchaser to purchaser and
enhances its value considerably. Often enough contracts of sale are concluded
only subject to planning permission being granted. Everyone realises that it is
of great worth. The date of the grant is also very important because less tax
may be payable on a grant before 1974 than after it. So it may be very
important for a developer to keep his original grant rather than have to apply
for a new one.
By contrast
the ‘reserved matters’ are matters of detail which are reserved for subsequent
consideration by the planning authority. In particular the planning authority
when it grants outline permission makes it subject to various conditions such
as that detailed plans have to be submitted for approval, and the work is not
to be begun until approval has been granted. The matters so reserved by the
conditions are called ‘reserved matters’ and are recognised by section 42 of
the 1971 Act. That section sets a time limit for an application for approval.
It is three years from the date when outline planning permission was given. But
the approval, once given, relates back to the original grant of outline
planning permission, so that the effective date of the grant is still the date
of the outline, and not the date of the subsequent approval.
Now I must say
that I see no justification whatever for the view expressed by or on behalf of
the Secretary of State as reported in the Journal of Planning Law. It
seems to me that, even though the planning authority may at an early stage have
given its approval in respect of a reserved matter, there is no reason whatever
why the applicant should not make another and different application for
approval in respect of that self-same matter. Take a few instances. Suppose
that a condition required the design and material of a house to be approved
and, on the first application, the planning authority approved a particular
style of facing brick or a two-storey house. But it afterwards appeared that
those facing bricks
a bungalow. I should have thought it plain that he could make a second
application for approval. The planning authority could grant it if it thought
fit–leaving the first approval still standing–in which case the applicant could
use whichever approval he liked: or the planning authority could grant the
second application, subject to the first not being proceeded with. Likewise I
see no reason why the application for approval of a reserved matter should not
cover the whole site. When a big development is in progress–when it is done in
stages or phases–an application can be made for approval of the plans for each
part or phase in time, without the developer committing himself to the details
of a later stage or phase.
I must,
however, add this word of warning. When an application is made for approval of
a reserved matter, the application must be within the ambit of the outline
planning permission and must be in accordance with the conditions annexed to
the outline permission. There is no provision whereby the applicant can, at his
own instance, modify the permission. Only the planning authority can do it
under section 45 of the Act. If the applicant desires to depart in any
significant respect from the outline permission or the conditions annexed to
it, he must apply for a new planning permission.
This brings me
to the objection made by the Manchester Corporation to the 1m sq ft. They said
that in the outline permission in September 1973 it was a condition that the
total ground-floor space of all uses in the development should not exceed 1m sq
ft: whereas in the application for approval in August 1975 the developers
annexed a schedule showing a total (if Chepstow House was included) of
1,050,265 sq ft: which should be increased, it was said, by another 47,329 sq
ft for external wall thickness. I cannot read that schedule as part of the
application or as disclosing any intention to break the conditions laid down in
the planning permission. It was, as Sir Douglas Frank said, for information
only.
Then it was
said that, by the original grant of outline planning permission, all the
buildings had to be demolished, including Chepstow House: whereas in the new
proposal Chepstow House was to be retained. Again in this regard I can see nothing
in the original grant which required the demolition of Chepstow House. It
envisaged its demolition but did not require it. A developer is not required to
complete every part of the permitted work unless there is a special condition
to that effect.
Lastly it was
suggested that the original lay-out and phasing could not be varied by an
application for approval of reserved matters: and that it could only be done by
a new application for planning permission. I cannot agree. The original
permission made it clear that the lay-out and phasing were for subsequent
approval and could be altered phase by phase.
I find myself
therefore in agreement with the declarations made by Sir Douglas Frank. The
only qualification is that in the second one the word ‘required’ should be read
instead of ‘necessarily implied.’ It
seems to me, therefore, that the developers in August 1975 made a perfectly
good application for approval of reserved matters, and it is for the
corporation to consider the application on its planning merits. If refused, the
developers can of course appeal to the Secretary of State. As I say, there is
nothing wrong or invalid in the application. I would therefore dismiss the
appeal.
Agreeing, ORR
LJ said: We are concerned in this case with three applications made by the
respondents to the Manchester City Council as the local planning authority. The
first was an application made on December 20 1972 for outline planning
permission for the comprehensive development by way of offices, shops, an
hotel, residential accommodation and other amenities, of an eight-acre site in
the centre of Manchester. The respondents on September 5 1973 granted outline
planning permission subject to a total of 13 conditions.
The area
covered by the permission included a building called Chepstow House which had
been brought into the proposed development at a late stage at the instance of
the local authority and to which I shall later refer.
The second
application made on December 7 1973 was in terms for ‘permission to develop
land’ but is agreed to have been in effect an application for approval of
matters reserved on the grant of outline planning permission, and it included
proposed development of a part of the area embraced in the outline planning
permission but not of Chepstow House. The outcome of that application was that
the council on February 6 1974 approved the plans and particulars subject to
eleven conditions.
On April 4
1974 certain premises in Oxford Street, Manchester, falling within the area of
the outline planning permission, and on June 28 of the same year Chepstow
House, were added by the Secretary of State to the list of buildings of special
architectural or historic interest with the result that they could not be
demolished without permission, and such permission was on October 2 1974
refused as respects the Oxford Street premises.
On August 11
1975 the respondents made an application described as being for the approval of
reserved matters following the grant of outline planning permission in which
they sought approval for a scheme embracing an hotel, certain other amenities,
and 24 service flats, and indicated the retention of the listed buildings. The
appellants’ response to that application, at first communicated orally to the
respondents’ architects, was that they were unable to entertain it as an
application for approval of reserved matters and they relied in support of that
view on a planning decision of the minister to which my Lord has referred.
Correspondence followed in which the respondents’ solicitors gave notice of
their intention to apply to the High Court for a declaration if the appellants
adhered to their attitude, and in the result proceedings were instituted on
March 26 1976 for the three declarations to which my Lord has referred. There
is no doubt, in my judgment, that the respondents were fully justified in
taking this course without further delay, since section 42(2) of the Town and
Country Planning Act 1971 provides that, as respects any reserved matter
attached to an outline planning permission, application for approval must be
made within a period of three years from the date of the outline planning
permission, and in the present case the three-year period would have expired in
early September 1976. In addition we have been told, and it is common ground,
that major tax implications may depend on the question of whether there is a
subsisting outline planning permission granted in September 1974.
On the hearing
of the summons the judge held that it is possible in law to make a second
application for approval on reserved matters after an earlier application has
been granted, and he made the first of the three declarations sought by the
plaintiffs, in addition to the second and third declarations which were sought.
On this appeal
Mr Glidewell was content to argue that the local authority were not required to
consider and decide a second application on matters of detail and to leave open
if he could the question whether they might consider such an application if
they wished to do so. The only authority he was able to cite in support of his
argument was the decision, to which my Lord has referred, of the Secretary of
State on April 14 1975 with reference to land at Hinksey, which contains the
following passage: ‘The view is further taken that once reserved matters have
been approved following a grant of outline planning permission, they cannot be
revised or varied by a further submission of reserved matters under the same
outline consent.’ But with great respect
to this decision, the view expressed appears to have been only one
of the reasons for the conclusion reached and it was expressed without the
advantage of having heard opposing arguments from counsel, and on the other
side there are in my judgment a number of powerful arguments which have been
advanced by Mr Eyre for the respondents in the appeal.
The first was
that nothing in the relevant statutes and orders prohibits the making of more
than one application or draws a distinction in this respect between outline and
other planning applications. Another is the technicality of the argument for
the appellants in the context of a case in which there is no suggestion that
the respondents should fail on any specific planning grounds. Finally, there is
the consideration that the relevant provisions should if possible be construed
so as to produce a sensible result (see per Widgery LJ, as he then was, in Garland
v Minister of Housing and Local Government (1968) 20 P & CR 93 at p
104). In my judgment, it does not make any sense at all that if as a reserved
matter it is determined (to take an example used in argument) that a particular
kind of facing bricks are to be used and they become unobtainable it should not
be possible to apply otherwise than by a fresh outline planning application for
permission to use alternative bricks. It is also, in my judgment, in the
context of the appellants’ argument that the local authority are not bound to
consider a second application as to reserved matters, no answer to say that
this example is de minimis.
For these
reasons, in addition to those given by the Master of the Rolls, I would reject
the appellants’ argument on the major issue; and, as to the other issues which
arise, there is nothing I wish to add to the reasons which my Lord has given,
I, too, would dismiss this appeal.
Also agreeing,
BRIDGE LJ said: The first and most important issue for decision in this appeal
is whether the documents submitted by the plaintiffs to the local planning
authority on August 11 1975 constituted a valid application for approval of
matters reserved by the outline planning permission dated September 5 1973 in
the sense that it complied with the statutory requirements relevant to such an
application.
That issue
turns upon three distinct questions. The first question is: Can the holder of
an outline planning permission validly apply for more than one approval of
reserved matters covering the same ground?
When that question was raised, my first impression was that the answer
must be ‘Yes, of course he can.’ With
all respect to the argument addressed to the court by Mr Glidewell, at the end
of the day that remains my firm opinion. As Mr Eyre pointed out in the course
of argument, it is trite law that there is no limitation on the number of
applications which can be made for planning permission under article 5 of the
General Development Order 1973. I can discover no reason whatsoever either in
the language of the statutory provisions or in any principle which may be
thought to underlie this scheme of legislation why exactly the same law should
not govern the making of applications for approvals of reserved matters under
article 6 of the same order.
The second
question is this: Is it necessary to the validity of an application for
approval of reserved matters under article 6 that it should cover all the
matters of detail reserved by the outline planning permission under which it is
made over the whole site to which the outline planning permission applies? I can see no reason why it should be or why
the developer should not seek approval of reserved matters piecemeal. It would
be quite a different matter, of course, to say that the local planning
authority is necessarily bound to deal with one matter of detail in isolation
from another if on the planning merits they are interdependent. Thus, for example,
if application were made for the approval of the siting of a building without
submitting plans showing its design, it might be a perfectly good reason for
withholding approval of the proposed siting that it could not properly be
considered independently of the design of the building. But that would be a
planning reason for refusal to approve reserved matters and not a reason for
treating the application as invalid as failing to comply with the statutory
requirements.
The third
question on which the validity of the August 1975 application depends is more
complex: The outline permission dated September 5 1973 is subject to condition
7: ‘The total gross floor space of all uses in the development shall not exceed
92,905 sq metres (1,000,000 sq ft).’ The
documents submitted to the planning authority on August 11 1975 included a plan
showing a site layout and anticipated phasing of development with a related
schedule of accommodation which makes explicit what is perhaps implicit in the
site layout as to the aggregate floor space which development in accordance
with that layout would involve. The total floor space of new building in the
schedule is within 1m sq ft, but the layout shows the retention of a building
called Chepstow House which is an existing building within the outline
permission site which, together with the new building development, would bring
the total floor space over the whole site to a figure in excess of 1m sq ft. It
is argued that for this reason the documents of August 11 1975 are not a valid
application for approval of reserved matters because they are not within the
ambit of the outline planning permission of September 1973.
It is first
appropriate, in my judgment, to consider when such a question is raised what is
the proper approach to it, and I would gratefully and respectfully adopt the
approach suggested by Thesiger J in the case of Cardiff Corporation v Secretary
of State for Wales (1971) 22 P & CR 718. The question that Thesiger J
posed for himself in a similar context was whether the documents submitted as a
purported application for approval of reserved matters under a subsisting
outline planning permission were fairly capable of being interpreted as such an
application. Before applying that approach to the facts of this case, it is
appropriate in my judgment to say something about the factual background
relating to Chepstow House. As my Lord the Master of the Rolls pointed out in
his judgment, Chepstow House was not included in the original development site
proposed by the plaintiffs. It was included in the site for which outline
planning permission was in due course granted at the express request of the
local planning authority; and the primary, if not the only, reason why the
authority made such a request is not difficult to appreciate. They desired to
secure the demolition of Chepstow House in order to make way for their city
centre road. The original plans in relation to which the outline planning
permission was granted show more than three-quarters of the site of Chepstow House
being taken for the new highway and less than one-quarter being left available
to the plaintiffs for the purposes of private development. The subsequent
listing of Chepstow House as a building of special architectural and historic
interest, unless listing building consent were to be forthcoming, will
inevitably have the effect of frustrating the city centre road proposal. It
will only affect to a very limited degree the extent of the cleared site which
the plaintiffs can secure for the purposes of their redevelopment. Thus, if one
is permitted to look at the merits of the matter, it would certainly produce a
wholly unreasonable result if the listing of Chepstow House, of which the
paintiffs must naturally now take account, should have the effect of frustrating
the scheme of development permitted by the outline planning permission granted
in September 1973.
But this third
question as to the validity of the application of August 11 1975 does not
depend on the merits. It depends on two somewhat arid technicalities. First, is
the schedule of accommodation which was amongst the documents submitted on
August 11 1975 either in itself or as implicit in the site layout plan a part
of the application for approval of reserved matters which was made on the date? I very
doubt because I prefer to rest my judgment on this point on a decision in the
plaintiffs’ favour of the second technicality, namely on the simple ground that
condition no 7 attached to the outline planning permission applies to new
building development only. Neither the site layout plan nor the schedule of
accommodation indicate new building development proposals in excess of
1,000,000 sq ft. Having said that, I would wish to emphasise again here that by
the exercise of their power to give or withhold approval of reserved matters
the local planning authority can in fact retain a completely effective planning
control over the aggregate floor space within the general principles approved
by the original outline planning permission which will eventually result from
the combined presence on the site of old and new buildings. Accordingly I reach
a conclusion in the plaintiffs’ favour on each of the three questions on which
the validity of the August 1975 application depends, and would affirm the first
declaration made in the plaintiffs’ favour by the learned deputy judge.
The second
declaration in the slightly modified form indicated by my Lord the Master of
the Rolls is not now in issue, and I need say nothing about it.
I doubt if any
great importance attaches to the third declaration, but as the issue has been
canvassed I will express my opinion on it. In respect to the phasing of this
development, the relevant requirements of the outline planning permission are
(1) that details of phasing and timing should be submitted with the detailed
plans, and (2) that development should only proceed in accordance with ‘an
overall phased programme to be approved by the council.’ The first of those requirements was clearly
satisfied by the plans submitted both in December 1973 and in August 1975. Has
there yet been an approval of the overall phased programme pursuant to the
second requirement? The plaintiffs submit
that there has not. The defendant authority submits that the approval of
reserved matters given on February 6 1974 definitively determines the overall
phased programme. Reading condition 2 of the approval dated February 6 1974 in
the light of the relevant correspondence, which precedes and follows the grant
of that approval, I am quite satisfied that it amounts to no more that an
indication that the phasing programme shown on the drawing should form the
basis of a formal agreement to be concluded between the developers and the
council at some time in the future. Since no such formal agreement has ever
been concluded, the plaintiffs are in my judgment entitled also to the third
declaration.
Accordingly,
I, too, would dismiss the appeal.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
