Reserved matters approvals: the varying conditions

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Notwithstanding opposition from the Parish Council, outline planning permission was granted in 2007, subject to conditions, for 700 dwellings and associated development on land at Fulford.

Many of the conditions required subsequent approval by the local planning authority (‘LPA’). In 2013, the LPA granted approval of reserved matters, subject to approval of a detailed bat mitigation strategy and a method statement. The bat mitigation strategy was approved in 2015 and the planning permission was implemented. Subsequently, a non-material amendment to the reserved matters application to alter approved plans and the approved bat mitigation strategy was granted approval in 2018.

The Parish Council considered that Section 96A didn’t allow this on the basis that the statutory power was limited to making non-material amendments to a planning permission and that an approval to reserved matters wasn’t a planning permission.

The court's decision

In dismissing the appeal, Lewison LJ accepted that a reserved matters approval isn’t a planning permission. However, the court said that the correct legal consideration is not whether a reserved matters approval is a planning permission or not, but whether the conditions imposed on it are conditions ‘subject to which the outline planning permission had been granted’.   The court held that they are. Therefore, an application for an amendment to an approval (or conditional approval) of reserved matters was an application for the alteration of an existing condition which was expressly permitted by Section 96A.

This decision endorses that in Pressland which dealt with an amendment to conditions attached to a prior approval for deemed planning permission, under Section 73 TCPA. The principles of Pressland establish that section 73 can also be used to vary conditions on a reserved matters approval.

The changing legal principle

We come across numerous instances where LPAs argue that section 73 applications can’t be made in respect of matters approved at Reserved Matters stage, but this approach is now confirmed as incorrect.  Fulford and Pressland, taken together, provide clear authority for the legal principle that both Section 96A and Section 73 applications can be used in respect of reserved matters (and other conditions to an approval).

In the case of Fulford, this is because a reserved matters approval is an intrinsic part of the grant of the planning permission notwithstanding that it is not a planning permission in its own right.

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