An application for outline planning permission for the erection of a building may, in some circumstances, incorporate changes of use and engineering operations
The Town and Country Planning (Development Management Procedure) (England) Order 2010 (“the Order”) defines “outline planning permission” as “planning permission for the erection of a building which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters”. The Order provides that “building” includes “any structure or erection and any part of a building” but excludes “plant or machinery or any structure in the nature of plant and machinery”. Finally, “reserved matters” is defined to mean “access, appearance, landscaping, layout and scale”.
In Elliott v Secretary of State [2013] EWCA Civ 703, the planning permission under challenge was accepted by all parties to have been granted in response to a hybrid planning application relating to a comprehensive phased scheme of redevelopment. In substance, it sought detailed planning permission for a national sports centre and outline planning permission for other development that included buildings but also encompassed changes of use and works that might be described as “engineering operations”. The claimant’s principal ground was that (a) the outline part of the permission included matters that fell outside the definition of “building” in the Order and/or (b) they were not matters capable of constituting “reserved matters” in relation to those buildings that were encompassed within the outline part, because they did not fairly and reasonably relate to the development applied for.
The Court of Appeal dismissed the appeal, taking what some may argue was an overly robust view. The appeal judges were at pains to emphasise that the statutory provisions should, and could, be read so as to accommodate comprehensive schemes like the present one. Laws LJ stated that a scheme that involves the construction of building, but which has broader planning purposes may be applied for in outline form, and in such a case there may be reserved matters that are not merely subsidiary details relating strictly to the buildings themselves. It all depended on the context.
Some commentators might well argue that this approach would not be taken by the court in the case of a more straightforward single development for which outline planning permission had been sought, and that it is a wise course always to bear in mind the definitions in the Order.
John Martin
