This short article relates to the interpretation of a phrase that is commonly bandied about in development-related documents, such as conditional sale agreements, overage agreements, development agreements, heads of terms, etc. ‘Detailed planning permission’ is a fairly ubiquitous turn of phrase, the kind of phrase that slips neatly into your vocabulary; it sounds right, it looks right and people probably quite commonly assume it means what they understand it to mean.
The question as to what it actually means has recently been considered in Loxleigh Investments Ltd v Dartford Borough Council [2019] EWHC 1274 (Ch).
The gist of what happened in this case was that Dartford Borough Council (‘the Council’) obtained outline planning permission to develop a site in 2012. As the Council’s planning permission was ‘outline’ only, it was granted subject to a number of conditions, these including the need for approval of the layout of the buildings, the access arrangements, the landscaping, detailed design plans, etc. – these outstanding items being known as ‘reserved matters’.
Shortly after obtaining its outline planning permission, the Council sold the site to a developer, Loxleigh Investments Ltd (‘Loxleigh’). Under the terms of the sale, the Council imposed overage/uplift obligations on Loxleigh, to require it to pay further consideration/uplift for the site in the event that “any detailed planning permission [for the site]” was granted in the 5-year period following the date of the sale.
What happened next was that Loxleigh made a number of further planning submissions in its own right, so as to convert the Council’s ‘outline planning permission’ into ‘full planning permission’ – which it did by gradually discharging the ‘reserved matters’ and generally making other modifications to the existing permission to suit its purposes.
In many people’s terminology, what Loxleigh will have had at that point was a ‘reserved matters approval’ – which is what you have when the reserved matters set out in an ‘outline’ planning permission are fully discharged.. but the question here was whether this was sufficient to amount to a ‘detailed planning permission’ and trigger the overage payments.
In due course the Council decided, reasonably enough, that it considered Loxleigh’s ‘reserved matters approval’ amounted to a ‘detailed planning permission’ and asked Loxleigh to settle its overage/uplift bill. Loxleigh’s response appears to have been (along the lines) that no overage/uplift was due, because it hadn’t obtained ‘a detailed planning permission’, i.e. so far as Loxleigh was concerned, all it had done was to convert an ‘outline’ planning permission into a ‘reserved matters approval’, or a ‘full planning permission’, by merely building on the groundwork already laid by the Council.
We don’t know what the Council’s legal team thought when they first heard that argument, but if no one used (at least!) the word ‘semantics’ then I will have been disappointed.
Happily, though, we know what the High Court thought – as going from the law reports it appears to have eaten Loxleigh’s hapless barrister for breakfast, before proceeding to set down in a summary judgement (i.e. this didn’t even make it to trial) that a ‘reserved matters approval’/ ‘full planning permission’ must equate to ‘detailed planning permission’, as this surely must have been what the parties intended in the context of the transaction - and it’s a phrase that’s commonly used to this effect in text books, law reports, journals, etc.
Perhaps more usefully, the High Court made clear (in case there was any doubt) that it doesn’t matter ‘who’ applies for any initial ‘outline’ planning permission, if ‘you’ then manage to convert it into a ‘full planning permission’, you will have procured the grant of full planning permission – which in this context it is now abundantly clear amounts to a ‘detailed planning permission’.
This isn’t a decision that will come as a surprise to many and in many ways it is surprising that Loxleigh sought to take the matter to a trial – to me it seems like a case of brinksmanship gone badly wrong – but at least we do now have, for the avoidance of any doubt, clear and settled guidance (if it was needed) as to the effect of discharging the ‘reserved matters’ attached to an outline planning permission and a settled meaning for the phrase ‘detailed planning permission’.