Planning appeal — Outline planning permission previously granted — Reserved matters applications not determined — Whether outline permission extant and currently capable of implementation — Inspector refusing appeal — Claim allowed
The claimant applied to the local council, as planning authority, for planning permission to construct a single dwelling on a site in respect of which outline planning permission had previously been granted. At that time, three reserved matters applications made under the outline permission remained outstanding and had not been finally determined by the council, although it was accepted that they could still determine them.
The council refused permission and the claimant appealed to the defendant secretary of state. The inspector hearing the appeal identified the central issue as whether a planning permission existed that could currently be implemented. The council accepted that if it did, objections to the most recent application based upon policy and principle would fall away. The inspector found that an impasse had arisen with the council with regard to the reserved matters applications, and that the council were taking the view that the applications were moribund and should be treated as though they had been refused. However, despite this, the merits of the reserved matters applications were, in fact, agreed between the parties. The inspector considered that the council’s view had no justification in law, but was none the less unlikely to change. He took this matter into account in determining that no extant permission could currently be implemented.
The claimant challenged that decision, arguing that it was flawed because: (i) the inspector had not found, and had not been entitled to find, that the outline permission had lapsed and could not be implemented; (ii) it was immaterial to the existence of a valid planning permission whether all reserved matters had yet been approved; and (iii) the reserved matters applications were still outstanding and fell to be determined by the council. He argued that the fact that an impasse had arisen with the council did not justify the inspector’s reluctance to engage with the issue and to determine the central point of whether a valid planning permission existed for the site.
Held: The claim was allowed.
The inspector’s finding that the council were unlikely to change their stance could not be reconciled with the evidence at the inquiry that all the issues on the reserved matters applications had been resolved and the council’s concession that planning permission should be granted if an extant permission existed. Although it was technically correct that no planning permission could currently be implemented, because the reserved matters had not yet been approved, this did not justify why they should not be, and the council were under a continuing duty to determine the reserved matters applications: Bovis Homes (Scotland) Ltd v Inverclyde Council [1983] JPL 171 considered. The inspector had either failed to have regard to the evidence or, if he had, had given no intelligible reasons for reaching his conclusion. His decision was unlikely to have been different had he taken those matters into consideration, and his decision would accordingly be quashed.
Jonathan Milner (instructed by BPE, of Birmingham) appeared for the claimant; Philipp Coppel (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
