Town and country planning – Planning application – Outline planning permission – Appellant seeking outline planning permission for mixed-use development with all matters reserved – Application including proposed floor space for each use and accompanied by illustrative drawings – Planning inspector refusing permission on grounds relating to height and massing od proposed building – Whether inspector’s decision wrongly taking into account issues of “scale” properly to be left for future consideration as reserved matters – Appeal dismissed
The second respondent council refused an application by the appellant for planning permission for a part four-storey, part five-storey building containing shops and offices on a site adjoining Kingsland High Street, London E8. The application was for outline permission with all matters reserved. The application specified the floor space intended to be dedicated to each of the proposed uses and was accompanied by drawings for illustrative purposes; these showed the elevations of the proposed building and a view of the building in perspective. The second respondents took the view that the excessive height and massing of the building would result in a development that related poorly to the existing development in the vicinity of the site, including a Grade II listed cinema, contrary to relevant local development plan policies.
The appellant appealed to the first respondent secretary of state under section 78 of the Town and Country Planning Act 1990. The appeal was heard by a planning inspector, who identified the main issues as being the effect of the proposed development on the character and appearance of the surrounding area and the setting of the listed cinema. He refused planning permission on grounds that included the detrimental effect that the proposed building would have on its surroundings by reason of its height, bulk and mass.
The appellant applied to quash the inspector’s decision under section 288 of the 1990 Act. It contended that the inspector had erred in his approach so far as he had taken into account the height and massing of the building; the appellant argued that, in taking such matters into account, the inspector had neglected the fact that the appeal concerned an application for outline permission only in which all matters, which under the Town and Country Planning (Development Management Procedure) (England) Order 2010 included the “scale” of the proposed building and thus its height and massing, were reserved for future consideration.
The claim was dismissed in the court below and the appellant appealed.
Held: The appeal was dismissed.
The appellant’s application was for outline planning permission, with all matters reserved for future consideration. There was no indication in the application that the appellant intended any of the five possible reserved matters, namely access, appearance, landscaping, layout and scale, to be decided at that stage.
Nonetheless, the proposed floor areas specified for each use in the application form were properly to be regarded as an essential component of the outline proposal. They quantified the floor space of the proposed development in precise terms and thus refined the description of the development. Such specificity as to floor space was not inconsistent with the “scale” of the proposed development being reserved for future consideration. Floor space and “scale”, as defined in article 2 of the 2010 Order, were not synonymous. While there would necessarily be some relationship between them, the fact that the floor space of a proposed development was identified in an outline application was not incompatible with its “scale”, including the dimensions of the proposed building, namely its height, width and length in relation to its surroundings, being left for future determination as a reserved matter.
The second respondents had not misunderstood the status of the application for outline planning permission when making their own decision. The refusal of planning permission on the grounds of the excessive height and massing of the proposed development did not conflict with the description of the proposal as an outline application with all matters reserved. The second respondents had not fallen into the error of treating the height and massing of the proposed building shown in the illustrative drawings as if they were matters for determination at the outline stage. The council clearly recognized that the illustrative drawings represented a building, partly of four storeys, partly of five, accommodating the aggregate amount of floor space specified in the application form for the two uses proposed.
The same could be said of the inspector as decision-maker in the planning appeal. He had recognised that the proposal before him was for outline planning permission with all matters, including “scale”, reserved. However, he had also recognised that the application for outline permission, while reserving all matters including scale for future consideration, had nonetheless identified a specific floor space for each of the uses in the proposed development and a total proposed floor space for those uses, with the illustrative drawings showing a building containing that much floor space. The appellant had put its case to the inspector on the basis that the illustrative drawings represented the proposal in the application for outline planning permission. It was that scheme, and only that scheme, on which the appellant depended in seeking to establish that the parameters of the proposed building would be acceptable on the site. No other possible scheme was mooted, let alone described or illustrated.
In those circumstances, the inspector could not be said to have erred in his approach to the appeal. He had not ventured into a consideration of any of the reserved matters or sought to determine that which was not before him, but had instead correctly taken the scheme before him at face value. He had considered the height of the proposed building, and its bulk and mass, with the aid of the indicative drawings, as he was entitled to do and as the appellant had clearly intended that he should. He did that not in order to pre-empt the consideration of “scale” as a reserved matter, but to test the acceptability of the outline proposal itself. Given the way the appellant’s case had been presented to him, he could not sensibly have dealt with the main issue in any other way.
The relevant development plan policies did not contemplate the approval of any and every scheme for a building of four storeys on the appeal site. Some proposals for a building of four and five storeys would comply with the policy, while others would not. In the instant case, the inspector had not been satisfied that a building of the floor space proposed could be accommodated on the site in accordance with the policy. He did not have to speculate about the possible merits of some other, hypothetical proposal for the site. It was not up to him to redesign the development to comply with the policies or try to work out for himself how much floor space an acceptable scheme might comprise. His task was to consider the merits of the development actually proposed in the application for outline planning permission, for a building whose height and massing were shown in the illustrative drawings. That was what he had done. His conclusions embodied a lawful exercise of planning judgment on the considerations relevant to deciding whether, in the particular case, outline planning permission should be granted, with all matters reserved.
Christopher Jacobs (instructed by direct access) appeared for the appellant; Richard Kimblin QC (instructed by the Government Legal Department) appeared for the respondents.
Sally Dobson, barrister
