The Supreme Court has ruled in favour of a developer which had unsuccessfully applied to the local council for discharge of conditions attached to a grant of planning permission.
The developer wished to build a mixed-use development that included 650 homes and a primary school. There was a risk that the development would have a detrimental effect on a Ramsar site – a designated site requiring environmental protection. Ramsar sites are not protected by the Conservation of Habitats and Species Regulations 2017 but Paragraph 181 of the National Planning Policy Framework (NPPF), as written at the time, stated that they should be given the same protection as sites protected under the Regulations.
Outline planning permission for the development had been granted in 2015 and it was proposed that it would be carried out in eight phases. In June 2020 the council granted reserved matters approval for the third phase of the development, subject to ten conditions. A year later the developer applied to the council to discharge six of those conditions. The council refused, relying on Paragraph 181 of the NPPF. It maintained that an appropriate assessment under the Regulations would have been required before such a decision could be made. A government planning inspector upheld the council’s decision.
After the High Court rejected its challenge to the inspector’s decision, the developer appealed to the Court of Appeal. The Court held that, properly interpreted, Regulation 63 of the Regulations applied when considering whether conditions attached to reserved matters approval should be discharged, and required an appropriate assessment to be carried out before such discharge. The Court also found that Paragraph 181 of the NPPF was engaged because of the connection between the consequence of discharging the conditions, namely to authorise the third phase of the development, and the object of the policy, namely to prevent harm to relevant protected sites. The appeal was dismissed.
Ruling on the developer’s further appeal, the Supreme Court concluded that the Court of Appeal had correctly interpreted Regulation 63. The Regulations were not ambiguous and were clear in their effect.
However, the Court had erred in giving Paragraph 181 of the NPPF the same status and force as Regulation 63, and had failed to take into account the nature of the rights conferred on the developer by the grant of outline permission. Where outline permission reserves matters for the subsequent approval of a local planning authority, the extent to which the authority can withhold approval is restricted to what was expressed to be so reserved, and it cannot go back on points of principle it has accepted by granting permission.
The council had relied on Paragraph 181 of the NPPF and new scientific advice given by Natural England to revisit matters that had been approved at the outline stage, in a way that could potentially preclude any development taking place within the ambit of the outline permission. It was not open to the council or the inspector to use the fact that outline permission had been granted subject to conditions as a basis for saying that, before those conditions were discharged, some additional measures to promote a different objective should be taken. The appeal was allowed.
