Crystal Property (London) Ltd v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Tomlinson
Judgment Date09 December 2016
Neutral Citation[2016] EWCA Civ 1265
Date09 December 2016
Docket NumberCase No: C1/2015/0448

[2016] EWCA Civ 1265

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR C.M.G. OCKELTON (sitting as a Deputy High Court Judge)

CO/4776/2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Tomlinson

and

Lord Justice Lindblom

Case No: C1/2015/0448

Between:
Crystal Property (London) Ltd.
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) London Borough of Hackney Council
Respondents

Mr Christopher Jacobs (instructed by Direct Access) for the Appellant

Mr Richard Kimblin Q.C. (instructed by the Government Legal Department) for the Respondents

Hearing date: 12 October 2016

Judgment Approved by the court

for handing down

(subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

In this appeal we must consider whether an inspector, when determining an appeal under section 78 of the Town and Country Planning Act 1990, went wrong in his approach to the application for outline planning permission before him.

2

The appellant, Crystal Property (London) Ltd., appeals against the order dated 15 January 2015 of Mr C.M.G. Ockelton, sitting as a deputy judge of the High Court, by which he dismissed its application under section 288 of the 1990 Act challenging the decision of the inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, to dismiss its appeal against the refusal by the second respondent, the London Borough of Hackney Council, to grant outline planning permission for a mixed use development of shops and offices on a site known as Morris House, adjoining 130 Kingsland High Street, London E8. The inspector's decision letter is dated 3 September 2014. At an oral hearing on 13 April 2016 I granted permission to appeal on only one of the six grounds of appeal in the appellant's notice, namely ground 6.

The issue in the appeal

3

The essential part of ground 6 can be extracted from paragraph 53 of the skeleton argument dated 21 March 2015 of Mr Christopher Jacobs, counsel for Crystal Property in this appeal. Mr Jacobs did not appear in the court below, where Crystal Property was represented by its agent, Mr Eric Walton. The issue is whether the inspector erred in the approach he took to the application for outline planning permission before him, neglecting the fact that all matters, including "scale", and thus the height and massing of the proposed building, were reserved for future consideration. Paragraph 53 of Mr Jacobs' skeleton argument states:

"The Deputy Judge erred in holding that … the Inspector was correct in considering that he was being asked on this occasion to consider the height and massing according to the plan submitted. The planning application was an outline application with all matters reserved …. The Appellant was simply seeking to establish consent for a part 4[,] part 5 storey building as is clearly stated on page 1 of the form. The requirements set out by the Council include the provision of indicative drawings. The Appellant [simply] submitted the same drawings as had been used in the 1990 and 2003 applications and the Deputy Judge erred in effect in holding that had the Inspector allowed the appeal, the Appellant would have established planning consent for a building as depicted in the drawings. This is simply not the case[. Had] the Inspector allowed the appeal then the Appellant would have achieved an outline consent for a part 4[,] part 5 storey building with all matters including height, massing and elevations reserved."

Outline planning permission

4

Under the statutory scheme an outline planning permission may be sought for the erection of a building, with all matters reserved for later consideration. Section 62 of the 1990 Act, "Applications for planning permission", provides:

"(1) A development order may make provision as to applications for planning permission made to a local planning authority.

(2) Provision referred to in subsection (1) includes provision as to –

(a) the form and manner in which the application must be made;

(b) particulars of such matters as are to be included in the application;

(c) documents or other materials as are to accompany the application.

(3) The local planning authority may require that an application for planning permission must include –

(a) such particulars as they think necessary;

(b) such evidence in support of anything in or relating to the application as they think necessary.

(5) A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified –

(a) a statement about the design principles and concepts that have been applied to the development;

(b) a statement about how issues relating to access to the development have been dealt with.

…."

Section 92, "Outline planning permission", provides in subsection (1) that "[in] this section and section 91 "outline planning permission" means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority … or the Secretary of State of matters not particularised in the application ("reserved matters")".

5

Outline planning permission was introduced under the Town and Country Planning General Development Order and Development Charge Applications Regulations 1950 ( S.I. 1950/729) ("the 1950 GDO"). An application for outline planning permission enables a local planning authority to decide whether, in principle, a particular form of development on a site is acceptable or not. The concept was explained very clearly in the Ministry of Town and Country Planning's Circular 87, which accompanied the 1950 GDO:

"Since consideration at the approval stages is limited by the terms of the initial permission, it is essential that that permission should not take the form of a blank cheque, and, correspondingly, the authority must be furnished with sufficient information to enable them to form a proper judgment of what is proposed; there can be no question of entertaining propositions which are still in embryo. The application should indicate the character and approximate size of the building to be erected, and the use to which it is to be put (e.g., 'a three-bedroomed house', a 'two-storied factory for light industrial purposes with an aggregate floor-space of 30/35,000 square feet')."

6

When Crystal Property's application for planning permission was submitted to the council in September 2013, and at the time of the inspector's decision in September 2014, the arrangements for applications for outline planning permission were provided in the Town and Country Planning (Development Management Procedure) (England) Order 2010 (S.I. 2010/2184), as amended ("the Development Management Procedure Order"). The Development Management Procedure Order was replaced by the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I. 2015/595), with effect from 15 April 2015.

7

Article 2, "Interpretation", of the Development Management Procedure Order provided:

"…

"outline planning permission" means a 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;

"reserved matters" in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application –

(a) access;

(b) appearance;

(c) landscaping;

(d) layout; and

(e) scale;

"scale" means the height, width and length of each building proposed within the development in relation to its surroundings;

…."

Article 4, "Applications for outline planning permission", provided, in paragraph (1), that "[where] an application is made to a local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for [its] subsequent approval", and, in paragraph (2), that where the authority is "of the opinion that … the application ought not to be considered separately from all or any of the reserved matters", it is to "notify the applicant …, specifying the further details [it requires]". Article 5 provided the requirements for an "application for approval of reserved matters". Article 8 provided for the content of design and access statements, including, in paragraph (3)(a), the requirement that a design and access statement must "explain the design principles and concepts …".

8

Government guidance on "Outline planning applications" in paragraph 14-034-20140306 of the Planning Practice Guidance, under the heading "What details need to be submitted with an outline planning application?" (replacing the guidance given in Circular 01/2006 – "Guidance on changes to the development control system"), says that "[information] about the proposed use or uses, and the amount of development proposed for each use, is necessary to allow consideration of an application for outline planning permission". Paragraph 14-035-20140306, under the heading "Can details of reserved matters be submitted with an outline application?" (reproducing advice to the same effect in paragraph 44 of the Annex to Circular 11/95 – "Use of conditions in planning permission"), confirms that an applicant can choose to submit details of any of the "reserved matters" as part of an outline application, but unless he has "indicated that those details are submitted "for illustrative...

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