How PiP differs from Outline Planning Permission & How LPAs can ensure the form of Development is Acceptable

A reserved matter to an outline planning permission is not a planning application but an application to discharge a planning condition on specified reserved matters.  The LPA has the power under the GPDO to refuse to determine the application without sufficient details (T&CP (Development Management Procedure) (England) Order, article 7 and the DMO (Wales) Order 2012, article 3).

One common issue is the means of access.  Highways authorities often refuse to determine applications without sitelines and a plan of the access point – so this is often included in applications with all other matters reserved.

Scale is one of the reserved matters.  However under well established principles of planning law reserved matters cannot abrogate the terms of the outline permission.  So if a description of development is ‘5 bungalows’ you have permission for 5 bungalows not 6 and not for two story houses.

PiPs have no such power of the LPA to ask for further details.  And because it is not a planning permission the regulations have to state in schedule 2 of the Town and Country Planning (Brownfield Land Register) Regulations 2017 on the contents of the register requirements over the number of units.  Note the wording it is very interesting.

(m)(i)a description of any proposed housing development; or

(ii)the minimum and maximum net number of ‎dwellings, given as a range, which, in the authority’s opinion, the land is capable of supporting;‎

(n)the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting;

A typical case with an outline permission is an LPA grants planning permission for 5  2 bed units based on an ‘illustrative layout’ and when the reserved matters come in for 5 4 bed units it wont fit.  Under  Crystal Property (London) Limited v Secretary of State for Communities and Local Government and Hackney London Borough Council [2016] EWCA Civ 1265 refusal would be acceptable as even ‘illustrative’ drawings show the proposed scale of the development so the subsequent application would be outside the terms of the permission.

The ability to ask for further information, together with ever increasing application of this power effectively circumscribed outline permissions more and more.  Development interests felt it was no longer possible to ‘redline’ a site with minimal information.

The ‘dual track’ approach of the regulations gives LPAs a choice.  If they opt for the clause m (ii) route then if they state in the register 50-65 units then these would be 50-65 units of any size and form. 

If however they take the m(ii) and n clause route they can fully describe the development and just specify the minimum number of units – which might be as established in the local plan of SHLA.

The regs dont specify the ‘description’ so It is entirely possible for LPAS to do a mini planning brief with a diagram and extended description in the schedule.

To my mind it would be foolish for any LPA to so specify the maximum number of units.

‘Some for example a description could be

‘A minimum of 50 housing units with a dwelling mic in accordance with local plan policy H3, accessed off Jolt lane (fig x), and including 0.5ha of public open space situated on the eastern part of the site.  No unit shall be above 3 storeys in height, except for units fronting Jolt Lane which shall be a maximum of 4 storeys in height.  The layout shall be in accordance with the approved planning brief for a site.  No built development is permitted within the flood risk area shown on fig x or within 10m of the 400 kv overhead lines as shown on Fig x.  Sufficient flood storage should eb provided on site to ensure no net run off from its present state in accordance with EA requirements and local plan policy E5’

This is somewhat of an extreme example but for large sites with a lot of work already doe and continued opposition, and where local plans are not yet adopted, there may be considerable pressure following the required consultation for the LPA to not consider the site suitable based on ungrounded fears as to what might be permitted on the site.

LPAs need to get there a%%%s into gear given the December deadline.  If any LPA wants assistance on the urban design, capacity and other issues in compiling their brownfield registers please get in touch. Unless LPAs have a clear audit trail on how they assessed the suitability, deliverability and capacity of sites they could be subject to JR.

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