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Cancelling the reservation? Does the Secretary of State have the power to call-in reserved matters?

It is generally considered that, once an outline consent has been secured, the Secretary of State does not have the power to call-in reserved matters pursuant to an outline planning permission.

In the Town and Country (General Development Procedure) Order 1995, Article 3 states: 'Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval'. It seems that the power of the Secretary of State referred to the calling-in of outline planning applications, but not to the matters reserved for approval.

A recent examination of the issue in February's Encyclopaedia of Planning Law and Practice1 update suggests that such an approach, while logical, might not be adopted by the courts, were the issue to be raised in such a setting. The authors look at the historical gestation of the current statutory provisions and conclude that the apparent loop-hole (allowing reserved matters applications to be treated differently from other applications for planning consent) was an inadvertent omission arising out of the amendment of earlier statutory provisions and that the legislation would therefore most likely be interpreted by the courts as allowing the call-in of reserved matters.

Of course, this remains untested before the courts. Given the current legal thinking on the issue, the Secretary of State is likely to be increasingly willing to call in reserved matters where he deems it necessary.

Margaret Casely-Hayford of solicitor Denton Hall, writing in April's Planning in London2, relates this reconsideration to a recent decision of importance to architects: 'A rap on the knuckles for a planning inspector by a High Court judge served to indicate that a refusal to grant a planning permission should be accompanied by an explanation of what a developer would need to do in order to make the application acceptable'.

In the case in question3 the developer sought permission for part of a large housing development which included two blocks of flats as well as detached and terraced houses incorporating a number of units of affordable housing. Planning permission had actually been granted in outline and it was an application for approval of reserved matters that the local planning authority had refused to grant, that had become the subject of the inquiry. The planning inspector concluded that 'due to the limited and uncoordinated alignment of buildings along public routes, the visual dominance of communal parking areas and their poor relationship with the housing they serve . . . [the development] would not be consistent with development plan policies and the guidance in the planning brief'.

On appeal, the applicants argued that the inspector, in reaching this conclusion, had failed to explain how the design could be improved to make the development acceptable. They relied heavily in this regard on an earlier statement by Lord Bridge of Harwich in the well-known case Save Britain's Heritage v Number 1 Poultry Ltd in which he said that 'a developer whose application for planning permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development'. The High Court accepted that this passage was applicable in this case, and noted that such a principle 'applies with particular force' to applications for approval of reserved matters. The appeal was therefore granted. The decision is laudable for trying to give the developer more certainty and clarity, comments Casely-Hayford.

Taken together these considerations have practical significance. It is common to seek outline planning permission for potentially controversial develop-ments, and then to try to negotiate the reserved matters with the local authority, secure in the knowledge that these issues were effectively removed from public interference with the principle of the development.

Outline planning permission is commonly granted subject to a condition or conditions requiring the subsequent approval by the local planning authority with respect to one or more 'reserved matters'. Thus approval is obtained for the 'building' with, for example, all the design issues left to be sorted out later. Under the previous thinking regarding the call-in of reserved matters, this would mean that design issues could be decided at a local level - now there is a shadow of doubt.

If the view persists that the Secretary of State can call in reserved matters, this undoubtedly has serious implications arising out of the practical application of centrally devised and imposed Regional Planning Guidance. Take, for example, rpg 3B/9B, Strategic Planning Guidance for the River Thames. The guidance includes many design recommendations for developments along the Thames, inevitably phrased in general terms, and thus giving the Secretary of State a policy backdrop for calling in a matter on design terms.

The Secretary of State could conceivably question a scheme on design terms where the local authority had taken a view that the principle of development was acceptable and important in economic and regenerative terms. Thus, given the new powers to be given the Mayor, a Thames riverside development may shortly have, in extreme cases, to jump three hurdles to achieve approval for a controversial design: the local planning authority, the Mayor and the Secretary of State, even where the principle of the scheme is not in contention.

While it appears that developers might no longer be able to remove design issues from possible consideration by the Secretary of State by treating them as reserved matters, the McLean case referred to above would suggest that development may not be rejected solely for reasons of its impact unless the planning authority makes quite clear that the objection it has is supported by sufficiently strong evidence; and if the authority is disposed towards refusing approval after an outline consent has been granted, guidance has to be given to make it clear to the developer how the apparent defect in the scheme might be rectified.

All of this aids certainty but what of the Secretary of State's ability to queer the pitch through a reserved-matters call-in, despite the existence of an outline consent? Clearly, the McLean decision would suggest that at worst he may refuse an approval whilst pointing the way to success, says Casely-Hayford. Architects should consider incorporating design principles when preparing outline applications, so limiting the scope of reserved matters or design. The incorporation of an (urban) design statement and an illustrative scheme should help and clients might more easily be persuaded to commission some design work where previously they wished to avoid the cost of so doing. Where a refusal or appeal is in prospect, architects should be forceful in suggesting that reasons should incorporate guidance as to how design criticisms might be rectified.

References

1 Encyclopaedia of Planning Law and Practice, Sweet & Maxwell.

2 Planning in London, on subscription from 0171 834 9471.

3 McLean Homes (East Anglia) Ltd v Secretary of State for the Environment, Transport and the Regions and Chelmsford Borough Council, January 1999.

Brian Waters is principal of The Boisot Waters Cohen Partnership: 0171 828 6555

'If the view persists that the Secretary of State can call in reserved matters, this has serious implications'

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