Council lawfully made reserved matters approval, Court of Appeal rules

Lord Justice Dove found environmental group Wildfish had not shown that Buckinghamshire Council was wrong to give approval for the reserved matters raised by developer David Wilson Homes (South Midlands) and Anglian Water Services.

Lang J had dismissed a judicial review of Buckinghamshire’s approval of an application for reserved matters related to a development for up to 170 homes and associated infrastructure at Maids Moreton.

David Wilson Homes had applied with all matters reserved with the exception of access. The developer later engaged with Anglian Water over ‘condition 13’ that required a waste water treatment capacity assessment, for which Anglian Water said it had no committed investment in the immediate future.

This led David Wilson Homes to submit an application under section 73 of the Town and Country Planning Act 1990 to vary condition 13.

Wildfish’s appeal argued there was a substantial alteration to the reserved matters for the waste water facility, which meant Buckinghamshire had no power to approve it since this was inextricably linked to the deadline for the submission of reserved matters and could not yet be resolved.

Buckinghamshire, David Wilson Homes and Anglian Water responded that Wildfish’s construction of the planning permission was incorrect and there was no basis to argue that the condition for waste water was governed by the timetable for other matters.

They said details of drainage were not a reserved matter in terms of the legislative regime governing outline planning permissions.

Wildfish also argued that Buckinghamshire erred in law in seeking to approve reserved matters as varied by the permission which had been granted pursuant to section 73.

It said acceptance of David Wilson Homes’ request to amend the reserved matters application was illegitimate and substantially altered the original basis of the reserved matters application to the extent that Buckinghamshire lacked discretion to accept such an amendment.

The council responded that the High Court made a finding of fact that there was nothing within the reserved matters application designed to discharge condition 13.

Thus, firstly, no ground of appeal could lie from Lang J's conclusion that as a matter of fact the reserved matters application was not intended, nor did it in substance seek, to discharge condition 13.

Secondly, there was in reality no substantial alteration to the application as a result of the change in its description.

Dove LJ said Wildfish in effect contended that it was unlawful to switch the reserved matters application from one parent permission - the outline permission - to another, the section 73 permission, in particular when the timescale for submitting reserved matters under the section 73 permission had clearly expired.

It also argued it was unlawful for Buckinghamshire to consider and determine the reserved matters application “with reference to" the section 73 permission, which was an entirely new and separate permission from the outline permission to approve the reserved matters pursuant to the subsequent section 73 permission.

The language of the Act “contemplates that there might be approval of reserved matters submitted under an original outline planning permission pursuant to a subsequent section 73 permission if they remain undetermined at the time when the section 73 permission is obtained”.

Dove LJ said it was uncontentious that the provision of a drainage scheme does not fall within the statutory definition of reserved matters and so this was not part of the reserved matters governed by the time limit for approval.

A reasonable reader would have concluded that condition 13 required details to be submitted as part of the reserved matters which would include foul water drainage infrastructure and so approval of the reserved matters did not involve a breach of condition 13 since the provision of all of the information to discharge condition 13 was not governed by the timescale set out in another condition.

Dove LJ said his conclusions on the amendment to the reserved matters application were that while there was a variation of the description of the reserved matters application, there was no amendment in substance.

“There was certainly no amendment of the application so as to make it an application for approval of reserved matters under the section 73 permission rather than the outline permission,” he explained.

The judge concluded: “Firstly, in my view reading all the documents together, the proper conclusion is…that the reserved matters application, specified in the application to be for the outline planning permission and described thereafter as such subject only to the observation of a ‘variation’ which was at best merely recording the fact of the section 73 permission, the reasonable reader would have concluded the reserved matters were approved under the outline permission.”

He said Lang J had been right to dismiss the judicial review on the basis that the reserved matters application had been lawfully approved.

Lord Justices Lewis and Lewison both agreed.

Law firm Dentons advised David Wilson Homes (South Midlands). Partner Michele Vas said: “The development has faced a number of judicial review challenges at every stage of the consenting process, creating delay and uncertainty for the developer. We hope that this judgment will now allow these much-needed homes to come forward in Buckinghamshire.”

Mark Smulian