The developer had applied for the approval of reserved matters and discharge of conditions within the time limit. Subsequent to that application (but before it was determined) the developer sought permission under s.73 of the TCPA 1990 to remove part of Condition 13, which required the submission of a foul water drainage scheme and programme for necessary foul water treatment upgrades before development began. Following the grant of the s.73 Permission, the LPA amended the description of the application for approval of reserved matters and conditions to refer to the “outline approval…as varied by” the s.73 Permission. The application to approve reserved matters and discharge conditions was subsequently approved.

WildFish argued that, as a result of the above, there was a substantial alteration to the reserved matters application which meant that the LPA had no power to approve it. It further argued that it was unlawful in effect to “switch”, after expiry of the reserved matters time limit, the reserved matters application from the outline permission to the s.73 permission.

Dismissing the appeal, the Court of Appeal found that the outline permission did not require Condition 13 to be discharged as part of the reserved matters approval, and in fact no attempt to do so had been made. The change related to the timing of the provision of the offsite foul water drainage scheme and, on a proper understanding of the outline planning permission and the reserved matters approval application, Condition 13 was not being discharged as part of the reserved matters application.

It further held that, contrary to the conclusion of the Judge below (and the arguments of the Council and developer), the reserved matters were approved pursuant to the outline planning permission, not pursuant to the s.73 permission. The outline planning permission (including the original form of Condition 13) was the permission for which the developer had obtained reserved matters approval. As such, the court left open the question of whether reserved matters applied for under an outline planning permission can be approved pursuant to a subsequent s.73 permission – in addition to or instead of that outline planning permission.

A copy of the judgment is available here.

Jonathan Welch acted for the Appellant, instructed by WildFish.

Charles Streeten and Stephanie Bruce-Smith acted for the First Respondent, instructed by Buckinghamshire Council.