When is an outline application not enough? Two contradictory recent decisions throw new light and confusion on the question often raised between architects and their clients about how much work has to go into the formulation of a planning application so as to establish the principle of the intended development.
This is often crucial. With complex proposals there are often conditional contracts for the purchase of the land or between public and private parties or landlord and tenants on which the project is to depend. The parties need to know as early as possible that matters of principle are acceptable to the planning authority, leaving the more costly aspects to be dealt with later as reserved matters and by satisfying conditions. The client will want to minimise his exposure to possibly abortive costs.
The planning world has been shaken by a decision (R v Rochdale ex parte Milne and others) in which the judge allowed an application by third parties to quash a consent granted for a major regeneration scheme in the North of England. The proposal was to create 8000 jobs on a site near the M62 and the railway.
Rochdale mbc granted outline consent to English Partnerships and William Bowden Properties, reserving siting, design, external appearance and means of access. A full consent was also granted for construction of a related road. The outline application was accompanied by an indicative schedule of floor space and an illustrative master plan. Although the applicants submitted a full environmental statement and an ecological survey, it was clearly the intention that an environmental impact assessment (eia) dealing with ecological and social aspects would have to be covered by conditions.
Local residents challenged the council's decision on the grounds that the material before the council was inadequate and therefore the decision was perverse. The judge agreed, considering that the applicants did not provide sufficient information to enable proper assessment.
It is clear from guidance, including ppg12, that the environmental consequences of development-plan policies have to be taken into consideration when the plans are being prepared. The detr's Best Practice Guide states: 'Remember that environmental appraisal is just that; the plan has economic and social needs to meet and the task of weighing environmental, economic and social considerations, remains.'
The council here argued that the scheme was in line with its own development- plan policy. The judge was concerned about the initial requirement that there should be sufficient particularity to enable the scheme to be considered in sufficient detail to meet the purpose of Schedule 3 to the Regulations. This gives the screening criteria that enable the decision-maker to decide whether or not the scheme in question is a 'Schedule 2 development' for the purposes of the Regulations (that is, one which might require an eia). If he cannot decide whether a scheme is a Schedule 2 project, power is not there to make a proper assessment of the situation.
'This approach must be right', says Margaret Casely-Hayford, partner at solicitors Denton Hall, 'even though it appears to undermine the ability to make outline applications in some instances because the fact that some assessment is eventually carried out is an insufficient response.'
This is a warning to applicants to ensure that the decision-maker has appropriate powers. Questions of support
Another recent decision made clear that if an officer-level decision is made about the need for an eia, the applicant should check that there has been proper delegation. This case suggests that applicants need to compile their support material with close attention to the legal requirements of the Regulations so that they can be certain that the material provided properly empowers the planning authority to ask the right questions and so has the means to come up with an unchallengeable decision.
A contrasting decision (R v Secretary of State ex parte Bath and North East Somerset DC) has ruled that a planning inspector could allow a listed- building consent and associated planning permission where it had been declared an invalid application by an authority for lack of sufficient detail. The council, Bath and North East Somerset, had appealed against an earlier High Court ruling that it did not have the sole right to arbitrate on the validity of an application to convert a listed building to a living/work unit. It had refused to register the application on the grounds that it did not contain sufficient detail. The applicant declined to provide more, arguing that until it knew whether the change of use was acceptable, the detail could not sensibly be provided. After he lodged an appeal and dates were fixed, the council challenged the Inspectorate's right to adjudicate on the validity of the application. The council believes that the decision will now make it harder for authorities to obtain the level of detail they consider necessary to determine such applications. It acknowledges, however, that it remains open to an authority in these circumstances registering an application to then refuse it for lack of sufficient detail.
In its Environment Bulletin, solicitor Nicholson Graham & Jones comments: 'The judge appears to have taken a practical commonsense view, on the basis that the inspector had all the application material and could perfectly well form the view as to whether there had been compliance with the rules relating to the validity of planning applications as set out in the t&cp (General Development Procedure) Order 1995.'
Brian Waters is principal of The Boisot Waters Cohen Partnership: 0171 828 6555/ firstname.lastname@example.org