Elliott & Ors v Secretary of State for Communities and Local Government

For a comprehensive planning scheme involving buildings, an outline application need not be confined to construction or to details strictly subsidiary to buildings. Depending on context, related earthworks, landscaping and other matters may fall within the statutory concepts of buildings or reserved matters. A hybrid application may include freestanding change-of-use elements.

Under regulation 9(5) of the Conservation of Habitats and Species Regulations 2010, a decision-maker may grant permission where the protected-species impact is minor and mitigated, unless it is likely that a licence will be required and refused. Imperative reasons of overriding public interest must be interpreted strictly, but an integrated fundraising element may contribute to a wider public-interest scheme.

Members of the Crystal Palace community association challenged, under section 288 of the Town and Country Planning Act 1990, planning permission granted for a comprehensive redevelopment scheme in Crystal Palace Park. The Administrative Court dismissed the challenge: [2012] EWHC 1574 (Admin).

Permission was granted to appeal on two grounds. The first concerned whether the application was validly made in outline form under the Town and Country Planning (General Development) Procedure Order 1995. The second concerned the effect of the Habitats Directive and the Secretary of State's consideration of potential effects on bats, including imperative reasons of overriding public interest.

1. Ground 2: outline planning permission. The appeal was dismissed. The statutory scheme did not require a comprehensive application involving buildings to have construction as its primary and overriding purpose. The wide definition of building in Article 1(2) of the Town and Country Planning (General Development) Procedure Order 1995, together with the scope of reserved matters, could accommodate related earthworks, landscaping and other elements of the overall scheme. Whether a matter was properly reserved depended on context, including whether it fairly and reasonably related to, and was necessary for, the development. Change-of-use elements could remain freestanding within a hybrid application.
2. The wording of section 92(2) of the Town and Country Planning Act 1990, referring to development consisting in or including building or other operations, did not support an artificially narrow construction of outline permission. The Administrative Court had not exercised a planning judgment when it described the development as an outline permission with reserved matters. It had merely characterised the scheme to apply the statutory provisions. The extensive information available at the inquiry, including parameter plans, also meant that objectors had a proper opportunity to make representations.
3. Ground 3: habitats protection. The Secretary of State was required by regulation 9(5) of the Conservation of Habitats and Species Regulations 2010 to have regard to the requirements of the Habitats Directive. In the circumstances, where Natural England had not objected and the environmental assessment identified only a minor adverse impact subject to mitigation, he was entitled to grant permission unless it was likely that a licence under regulation 53 would be required and refused. R (Morge) v Hampshire CC [2011] 1 WLR 268 supported the relevant approach, although the present case differed because the Secretary of State was himself the licensing authority.
4. The Secretary of State did not need to use the acronym IROPI expressly. The Inspector's report identified the issue, and the Secretary of State's decision letters showed that he had considered the effects on bats and the acceptability of mitigation. The requirement to identify imperative reasons of overriding public interest was therefore satisfied.
5. The concept of IROPI required strict interpretation. However, the residential development used to raise funds was not severable from the wider public-interest scheme. The reasoning in Solvay v Region Wallonne [2012] 2 CMLR 19, concerning a project conferring only private benefit, did not govern these materially different facts. No preliminary reference was justified. Lord Justice Lewison and Lord Justice McCombe agreed. Order: appeal dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal on both permitted grounds and ordered: appeal dismissed.
2. Queen's Bench Division, Administrative Court dismissed the challenge under section 288 of the Town and Country Planning Act 1990: [2012] EWHC 1574 (Admin).