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Lionel Jeffrey Cozens-Smith v Bellway Homes Limited [2019] EWHC 3222 (Ch)

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28th May 2020

Summary

An application for the approval of reserved matters does not amount to a new application for planning permission.

Facts

In July 2016, four freehold owners of some land, one of whom was the Claimant, had obtained outline planning permission for the construction of 75 dwellings on the land.

The outline permission provided that the approval of four reserved matters, namely layout, scale, landscaping and appearance, would have to be obtained from the local planning authority before any development was begun.

In December 2016, the owners sold the land, less a small strip, to the Defendant for £9.65 million. The reserved land formed a strip of land 0.25m wide running along the northern and eastern boundaries of the site (the strip).

The Claimant was now the sole owner of the strip. The land was sold with the benefit of the outline planning permission. The term “planning permission” was defined in the transfer as “planning permission reference WA/2015/0478 as may be amended or varied from time to time”. The reference WA/2015/0478 was the reference given to the outline permission. The developer was given certain rights in the transfer, including the right to go on to the strip and to build upon it.

The Claimant covenanted, among other things, to “comply with the conditions referred to in the Planning Permission insofar as they relate to the Retained Land“, i.e. the strip.

On 31 March 2017, the developer made an application for approval of reserved matters in respect of the site. On 28 July 2017, the local planning authority granted “planning permission” for the development specified in that application.  The permission included a schedule setting out 10 conditions, one of which provided for the laying out of “pedestrian and cycle links … in accordance with the approved plans”.

Pursuant to that condition, the developer constructed a footpath on the site which crossed the strip.

The Claimant sought declarations that he was not obliged to permit the construction of the footpath and, in the alternative, that he was not obliged to grant a right of way along it.

The Defendant argued that the footpath had been constructed pursuant to its rights under the transfer, which included the reserved matters approved by the local planning authority on 28 July 2017. The Claimant argued that the local planning authority’s decision of 28 July 2017 amounted to a new grant of planning permission, not an approval of reserved matters under the outline planning permission.

The Defendant made an application for the striking out and/or summary judgment in respect of the Claimant’s claim for declarations.

Issues

• Did planning permission include only the outline planning permission dated 1 July 2016 or the approval of reserved matters (“the disputed ARM”) dated 28 July 2017 as well?

Decision

The definition of “planning permission” in the transfer included not only the outline planning permission but also the disputed ARM.

The disputed ARM was an approval of reserved matters in respect of the outline permission, not a grant of new planning permission pursuant to R v Bradford upon Avon UDC ex p Boulton [1964] 1 WLR 1136.

The application pertaining to the disputed ARM was held to be an application for an approval of reserved matters and it was clearly described to be so on its face.  It was held that, on the Claimant’s construction, the natural implication was that the Defendant purchased the site with the benefit of outline planning permission for £9.65million with the intention of building the development but could not lawfully implement the OPP because the disputed approval of reserved matters did not form part of the definition of planning permission in the transfer. This, it was held, was clearly wrong.

The claim for the first declaration, i.e. that he was not obliged to permit the construction of the footpath was doomed to fail. The obligation to permit the construction of the footpath was founded on the rights granted to the developer in the transfer for the benefit of the site.

The claimant and his co-owners had expressly covenanted with the Defendant for themselves and their successors-in-title in respect of the strip to comply with the conditions referred to in the planning permission insofar as they related to the strip. The developer had constructed the footpath in accordance with the outline planning permission and the disputed ARM.

The local authority had confirmed that the pedestrian and cycle links complied with the approved plans, and the head of planning services had written to the Defendant confirming that the relevant conditions in the disputed ARM had been complied with.

The second declaration sought was also doomed to fail on the basis that the Defendant never asserted that it had the right to compel the Claimant to grant a right of way over the footpath., This was not a condition in either the outline planning permission or the disputed ARM.  The Court would therefore not grant an entirely academic declaration.

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