Local planning authorities are increasingly imposing additional controls at reserved matters stage that go beyond the terms of the original outline consent.
A topical example is the addition of conditions to meet sustainability standards.
Outline permission is meant to fix the main parameters and restrictions for development through conditions and planning obligations. Certainty as to planning costs is the holy grail for many developers. However, councils often want to look at latest policy when assessing reserved matters, even if that policy was not conceived when outline consent was granted.
The historic legal test has been that new policy requirements can only be applied so long as they do not derogate from the outline consent. This is always a question of fact and degree. Developers are likely to measure derogation by reference to cost, councils by the extent to which a condition relates to the issues reserved and the political importance of bringing consents in line with policy.
In Redrow Homes v First Secretary of State and Another , the courts held that there had been a derogation. Consent had been granted in 1957 for a large commercial development but required approval of access details. The secretary of state, applying modern transport policy, sought to limit use of the access to public transport vehicles alone. The courts found that this restriction undermined the developer's ability to implement the permission.
Cost is not only consideration
Cost may be a measure of derogation, particularly if the increase is so extreme as to make the development unviable, but it is not overriding. This factor should diminish in importance during the next few years as option and development agreements anticipate changing reserved matters requirements and look to deduct anticipated cost increases from prices paid.
Where the balance is drawn will depend on a host of factors. These include the conditions and obligations that have been agreed, the extent to which requirements have been anticipated in national and local policy and the developer's ability to provide additional facilities in a partially completed scheme.
At present, a policy specifying that electricity should be generated from on-site wind turbines cannot be used to require turbines for all houses in a development if the consequence would be that some of the houses permitted at the outline stage could not be delivered. That would derogate from the outline consent.
Conversely, if a policy requires carbon neutrality, this might well be an acceptable imposition at reserved matters stage in the absence of explicit conditions or obligations covering sustainability. Similarly, a policy requiring all homes to incorporate water-saving spray taps is unlikely to be a material derogation from outline consent and can probably be lawfully imposed at the reserved matters stage.
Derogation relies on context
Developers cannot hope to argue that a reserved matters condition is a derogation simply because spray taps are more expensive than traditional taps. But while a condition requiring solar water heating systems on every roof might not materially derogate from the physical development permitted, the costs involved might be prohibitive.
As a matter of principle, councils should be able to look to current policy in granting reserved matters approvals. None of us should be involved in delivering development to outmoded and obsolete standards simply because a consent is "old". Imposing conditions that reflect latest policy allows good practice to guide development.
This issue will rise further up the agenda in the near future. The recent DCLG consultation papers proposing a twofold decision-making and environmental statement process suggest a real possibility of significant change between outline consent and the subsequent approved development. If this is allowed, then there must be an opportunity for the latest policy changes to be applied.
Government guidance on what is acceptable at the reserved matters stage would be useful. In the meantime, planning authorities need to consider whether a requirement amounts to a material derogation and ensure that conditions do not extend beyond it. Developers need to accept that the boundaries are shifting and that the scope for obligations is expanding. One response may simply be to tie down the core issues more precisely at the outline stage.
Stephen Ashworth is head of real estate and planning and Janine Shaw is a solicitor at Denton Wilde Sapte.