Amending the status quo on reserved matters approvals

Making amendments to details submitted as reserved matters on large development schemes can pose difficulties - until now there has been no specific authority that non-material amendments could be made to reserved matters approvals (RMAs), although it has frequently been done in practice. A recent Court of Appeal decision, R (on the application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359, has the potential to make things a lot more straightforward, providing authority both for non-material amendments to RMAs (save for the extension of time) and for the conditional grant of RMAs.

Background

Fulford v York relates to a residential scheme on land at Germany Beck in Fulford, York, which has been the subject of more than one challenge. The issue at the heart of this case is the power of a local planning authority under section 96A of the Town and Country Planning Act 1990 (1990 Act) to amend a planning permission relating to land in its area, provided it is satisfied that the change is not material. The question for the Court of Appeal to consider was whether the power under section 96A could not extend to reserved matters approvals because such approvals are not "planning permissions".

Fulford argued that it was unlawful for the local planning authority (York) to approve a non-material amendment to a condition attached to a RMA because section 96A did not empower York to make that decision. This was because, they argued, an approval of reserved matters is not a planning permission. The thrust of Fulford's argument was that legislation and case law maintain a clear distinction between a "planning permission" on the one hand and an "approval" on the other, and nowhere in the 1990 Act does it say that the approval of reserved matters is an application for planning permission.

Lewison LJ, who gave the leading judgment, accepted that the approval of reserved matters is not, itself, a planning permission and that an application for such approval is not, itself, an application for planning permission; however, he held that the "planning permission" to which section 96A refers is the package consisting of the grant of planning permission itself, together with any conditions to which the grant is subjected, whether the conditions are imposed at the time of or subsequent to the grant of permission. On this point, Lewison LJ confirmed that it is lawful for local planning authorities to give conditional approval to reserved matters, provided of course that such conditions are within the scope of what has been reserved at the outline stage for subsequent approval. Lewison LJ went on to state that "an application for an amendment to an approval (or conditional approval) of reserved matters is an application for alteration of an existing condition; which is expressly permitted by section 96A(3)(b)".

The decision makes clear that the one condition that cannot be overridden using section 96A powers is a condition limiting the time within which development must be begun or an application for the approval of reserved matters must be made (section 73(4) of the 1990 Act). However, LJ Lewison saw no good reason for outlawing non-material changes made after the reserved matters time limit if the original approval of reserved matters had been made within the relevant time limit.

A persuasive point made by Mr Cannock QC for the developer was that in order for a local planning authority to decide whether to exercise its powers under section 96A it must be satisfied that the proposed change is not material. Whilst materiality was not at issue in Fulford v York, Mr Cannock submitted that in order to carry out this assessment, the local planning authority cannot merely consider the original outline permission and its conditions; it must also consider the details of reserved matters that have been subsequently approved. Mr Cannock made the point that "[i]f a developer were to ask: what development is permitted by the outline permission, the only possible answer is that the permitted development is to be found in the package consisting of the outline permission, any approval of reserved matters, and any subsequent non-material changes."

Comment

This decision should be welcomed by developers who make use of outline or hybrid planning permissions. Section 96A powers were introduced almost 10 years ago with the intention of building flexibility into the planning system; however, because of the ambiguity in the 1990 Act as to whether non-material amendment applications can apply to reserved matters approvals, planning professionals and local authorities alike have tended to take a cautious approach because of the risk of challenge. This has resulted in an inherent lack of flexibility on larger, more complex mixed-use schemes, which, ironically, are exactly the types of developments that would benefit most from the flexibility offered by the informal section 96A procedure.

It wouldn't be surprising if this decision ends up in the Supreme Court – not only due to local opposition to the scheme, but also because this decision offers a new perspective on the interpretation of this area of law. But, for now at least, this Court of Appeal decision provides developers, advisers and local authorities with a reasoned justification for a very sensible practice that had been tacitly accepted for years without express authority.

Author: Alistair Paul, associate, planning, London

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