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Why reserved matters matter

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Three recent cases provide reminders to take care with the wording of reserved matters conditions

Reserved matters are those matters of detail not dealt with on the grant of outline planning permission, for which approval must subsequently be obtained. In practice, it specifically refers to siting, design, external appearance, means of access or landscaping.

Here we examine some case studies which highlight the imperatives implicit in reserved matter judgements.

In Case 1, outline permission was granted in 1995 for the redevelopment of a former power station site for a mix of uses including retail and business ( R v Leicester City Council ex parte Powergen UK plc [1999] EGCS 130).

A condition required the submission of reserved matters for 'the development' before 25 January 1998 (three years from the grant) and another condition that approval be obtained 'before the development is begun'.

In November 1997, a reserved matters application, which was eventually approved, was made for a part of the development, a retail food store. In August 1998 the developer applied to vary the conditions so as to extend the time limit. The council refused the application on the grounds that changed policies favouring city centres meant that the food store on this site was no longer acceptable.

The developer sought a judicial review, arguing that it was unreasonable for all the reserved matters to be approved before any of the development could be begun.

The judge held that all reserved matters had to be submitted before development could begin and that it was open to the council to reconsider the principle on receiving a new planning application.

This extreme example should serve to warn architects to always discuss conditions and ask for, if they are not offered, a copy of the final draft report so they can comment. Officers will nearly always accept practical reasoning relating to the wording of conditions, not wishing them to undermine the permission which they are (generally) about to recommend.

More common is the call for submission and approval of all reserved matters before the development begins, which - in practice - would seriously delay the construction - approval of sample roof tiles hardly being needed to get groundworks under way. Look out for this before it is too late and get such conditions worded to the effect that 'submission and approval of reserved matters should be obtained before the related element of the development is commenced'.

Off to a bad start

So when does the development begin? In Case 2, permission was granted in 1988 to demolish a house and build another on the site, subject to a condition that work should begin before 4 July 1993 (Riordan Comms Ltd v S Bucks DC, QB Div, 2.12.99). On 30 June of that year, work did start - demolitions and foundations for the garage - but they then ceased until 1997. Then it restarted and the council claimed that the permission had lapsed because the 1993 works were not carried out with the necessary genuine intention of completing the development. They argued that the developer did not carry out material operations as required by s.56 of the 1990 Act unless, at the time he began the relevant works, he did so with the intention of completing the development.

The court however applied the principles of the Pioneer Aggregates case on extinguishment of planning permission and held that there was no justification for implying a subjective intention in the provisions of s.56. Otherwise, they held, the consequence would be the loss of a property right, which could only be removed by the law. The work, they decided, met with the requirements of s.56, having been done in accordance with the planning permission and being comprised in the development.

However, they stated that the conditions - including any reserved matter approvals - must have been complied with when the works started. Don't forget that there needs to be evidence of the date of commencement, just in case there is a challenge from the planning authority.

Short-term London letting

Given the rising prices of the residential property market, the pressure for short-term letting has encouraged the development of the 'apart-hotel', a type of hotel which generally does not conflict with residential neighbours, as many hotels do. The law governing change of use, applied to shortterm letting, is confined to Greater London and is fairly obscure, so be aware of its clauses and point them out to your client.

In Case 3, Westminster City Council enforced against a block of nearly 90 flats in Park Lane - whose authorised use was residential - for unlawfully letting flats short-term (meaning fewer than 90 nights in the GLC (General Powers) Act: 1973. The owner challenged the council in the High Court but his application to amend the law was rejected (Hyde Park residents Ltd v SoS and WCC [1999] JPL 897).

This case highlights the situation that changes from residential use to 'temporary residential accommodation' do not involve development within the meaning of the 1990 Town & Country Planning Act. Instead, they refer to the 1973 Act, which specifically provides for planning control to apply to a particular type of use within a defined geographical area. The 1990 Act and Use Classes Order should not be construed as repealing, modifying or 'dis-applying' the effect of the local 1973 Act.

The disastrous consequences of the above cases reiterate the fact that ignorance, in all things legal, is no defence.

Brian Waters is principal of the Boisot Waters Cohen Partnership.

Tel 020 7828 6555

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