Outline applications for planning permission

How wide is the scope of an outline application for planning permission? John Pugh-Smith looks at the issues.

According to official online founts of knowledge an application for outline planning permission allows for a decision on the general principles of how a site can be developed. Outline planning permission is granted subject to conditions requiring the subsequent approval of one or more ‘reserved matters [1]. It establishes the principle of development and as such detailed plans will not normally be required although this is largely dependent on the nature of the application [2]. Indeed, this advice is based upon a number of familiar case law authorities; but these principles, in turn, have arisen through  fact sensitive determinations arising from the interpretation of a planning permission rather than of the scope of the planning application.

This was the unusual occurrence in the case of Crystal Property (London) Limited v Secretary of State for Communities and Local Government and Hackney London Borough Council [2016] EWCA Civ 1265. Crystal had applied for outline permission for a mixed use development of shops and offices on a site known as Morris House, adjoining 130 Kingsland High Street, London E8. The application form had been completed describing the proposal as "application for outline planning permission with all matters reserved". The proposed development had been described as a "part four, part five-storey building"; and details of the proposed floor space had been given. Drawings had also been submitted showing the height and massing of the building.

The Council had refused the application on the basis that, because of its excessive height and massing, the building would be detrimental to the area. This decision was upheld at appeal with the Inspector concluding that, as the drawings accompanying the application indicated the building's possible layout and design, the building would have an unacceptably harmful effect on the area because of its size.

In the High Court, the Deputy Judge (Mr C.M.G. Ockleton QC) had held that because the drawings were not marked as "illustrative", height and massing were not reserved matters and that the Inspector had been correct to consider them. Before the Court of Appeal, Crystal submitted that the Inspector should simply have considered whether there was any reason to withhold outline planning permission, leaving height and massing to be determined when the scale of the proposed development was considered at the reserved matters stage.

Dismissing the challenge, and, giving the lead judgment, Lord Justice Lindbom, remarked that although the application drawings had not been marked as "illustrative" or "indicative", they could only sensibly be understood as being illustrative. The central question, then, was how the floor space details submitted with the application were to be understood. Were they part of the proposal for which outline permission was being sought? If they were, the Court had to ask how they related to the scale of the development, which was reserved for future consideration. Some caution was needed in tackling those questions. Firstly, the relevant authorities [3] on reserved matters, scale and floor space were concerned with the interpretation of a grant of planning permission, rather than a rejected application. Secondly, some of those authorities were concerned with the legislative regime as it was before the concept of scale was introduced to the definition of reserved matters by the Development Management Order 2010. Finally, in all of them the decision had turned on the facts. However, it was entirely consistent with these authorities to regard the proposed floor area as an essential component of the outline proposal. Nevertheless, floor space and scale were not synonymous; and it was possible for floor space to be specified in an outline application while scale was reserved for future determination.

However, the Inspector had not misunderstood the status of the application; for his decision letter had clearly stated that it was for outline permission with all matters reserved. Nor had he fallen into the error of treating height and massing as if they were matters for determination at the outline stage. He had properly observed that the drawings indicated a possible rather than definitive layout and design, and, that Crystal was seeking to establish the parameters of a building that would be considered acceptable. It had put its case on the basis that the drawings represented its proposal for outline planning permission. The floor space details were not expressed to be indicative, approximate or maximums that might be materially changed when the reserved matters were submitted. Nevertheless, as a matter of basic geometry, a building on that site, with that number of storeys and that amount of floor space could not be designed so as to be materially different in terms of height and massing from the building shown in the drawings. In those circumstances, it could not be said that the Inspector had erred. He had not considered reserved matters but had, quite properly, looked at the height, bulk and mass of the proposed building in order to test its acceptability. He had properly carried out his task of considering the merits of the proposal. Therefore, there had been no error of law in his conclusion that it would not be a satisfactory development of the site. Finally, insofar as the Deputy Judge had thought that the height and massing of the building were not reserved matters and were formally before the inspector for determination, he had been wrong. Those matters informed the inspector's decision but had not altered the status of the application.

So, by way of practical considerations, is the concept of a bare outline application for non-EIA development now effectively dead, given the prescribed requirements of the Development Procedure Orders [4], coupled with the power of the LPA to determine its particular validity requirements [5]? If, as I venture to suggest it is, certainly in an urban context, then the Crystal case is a stark reminder that even greater care needs to be exercised in how the application form is completed and how the drawings are titled.

John Pugh-Smith is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..