An outline planning permission is meant to fix the main parameters and restrictions for development through conditions and planning obligations. The problem, of course, is that LAs often want to look at the latest policy guidance when assessing reserved matters, even if that policy was not conceived when outline consent was granted. Historically, the test has always been that new policy requirements can only be applied insofar as they do not derogate from the outline consent. But, that has always been a matter of fact and degree (developers may well measure derogation by reference to cost).

The classic case is Redrow [2005] where it was held that there had been a derogation. Consent had been granted in 1957(!) for a large commercial development, but required approval of access details. Applying modern transport policy, limitation was sought that would restrict access to public transport vehicles alone. The courts found that such a restriction would undermine the developer’s ability to implement the permission and so was derogation. For a modern-day example, a policy requiring all homes to incorporate water-saving spray taps is unlikely to be a material derogation from outline consent. A developer could not argue that it was a derogation simply because spray taps are considerably more expensive than traditional taps. Taking this further, if the condition required solar water-heating systems in every house that might not materially derogate from the physical development, but the costs then might be prohibitive, so making the development not viable (and that in turn would probably amount to derogation).

Overall, the law is clear that LAs can look at current policy in granting reserved matters approvals. The general approach is that it is wrong to deliver development to outmoded and obsolete standards simply because a consent is ‘old’. This approach will probably be formalised in the near future since recent consultation papers propose a two-fold decision-making and environmental statement process, which presupposes the real possibility of significant change between outline consent and subsequent approved development. From the developer’s point of view, it needs to be accepted that the boundaries are shifting, and that the scope for objecting to ‘new’ obligations is reducing. Developers who want certainty are best advised to try and get specific agreement at the outline stage, so as to reduce scope for further argument. Source: Denton Wilde Sapte. © Practical Lawyer