MMF (UK) Ltd v Secretary of State for Communities and Local Government & Anor

In an outline planning permission, Scale and Appearance are distinct matters. Scale concerns the height, width and length of a proposed building in relation to its surroundings. Appearance concerns the design and visual qualities of the development. An inspector determining reserved matters must not use Appearance to decide a comparative question of height or bulk which was already determined, or not reserved, at the outline stage. A decision is unlawful where the inspector takes that immaterial matter into account. The decision letter must be read straightforwardly and without excessive legalism.

The claimant obtained outline planning permission for apartments and commercial units, with Layout, Appearance and Landscaping reserved for subsequent approval. Scale and Access had been determined at the outline stage. On an application for approval of reserved matters, the local planning authority refused permission, referring partly to the development’s height and bulk. An inspector dismissed the claimant’s appeal, relying on the proposal’s relationship with surrounding buildings and listed buildings.

The claimant sought to quash the inspector’s decision under section 288 of the Town and Country Planning Act 1990. The central issue was whether the inspector had unlawfully considered Scale when determining the reserved matter of Appearance.

1. Decision quashed. The inspector’s decision dated 18 June 2010 was quashed. The first defendant was ordered to pay the claimant’s costs of £12,500.
2. Under the Town and Country Planning (General Development Procedure) Order 1995, Scale and Appearance address different aspects of a development. Scale concerns the physical relationship between the proposed building and its surroundings, including height, width, length, size and massing. Appearance concerns how the building is designed within that overall form, including its architecture, materials, decoration, lighting, colour and texture.
3. Appearance may involve height in the abstract, such as whether an individual building is aesthetically disproportionate. It does not permit consideration of height merely because the building is taller or bulkier than surrounding buildings where that comparative relationship is a question of Scale.
4. The inspector’s references to the proposal being too large, overbearing and out of scale with surrounding buildings showed that he had considered Scale. Scale had not been reserved for determination. That was an unlawful consideration and took the decision outside the inspector’s powers.
5. The court applied the principle that a planning decision may be interfered with where an immaterial consideration has been taken into account. It also construed the decision letter by a straightforward, down-to-earth reading, without excessive legalism or exegetical sophistication.

The judgment describes a local planning authority’s refusal of reserved matters approval and an inspector’s dismissal of the claimant’s appeal. The High Court quashed the inspector’s decision under section 288 of the Town and Country Planning Act 1990.