Crystal Property (London) Ltd v Secretary of State for Communities and Local Government & Anor

An outline application that expressly reserves all reserved matters remains an application in which scale is for later approval. Indicative drawings do not change that status merely because they show a possible built form.

Specified floorspace may nevertheless be an essential and fixed component of the outline proposal. Floorspace is not synonymous with scale, which concerns a building’s height, width and length in relation to its surroundings.

An inspector may use illustrative drawings to assess whether the actual outline proposal, including its stated floorspace, is acceptable in principle. The inspector need not determine reserved matters, speculate about a different scheme, or redesign the proposal to make it policy-compliant.

Crystal Property sought outline planning permission, with all matters reserved, for a part four-storey and part five-storey mixed retail and office development at Morris House in Hackney. Its application specified the proposed retail and office floorspace and included drawings which it said were illustrative.

The council refused permission because of the proposed building’s height and massing. On an appeal under section 78 of the Town and Country Planning Act 1990, the inspector dismissed the appeal after considering the illustrative scheme’s effects on the streetscene and the setting of the Rio Cinema, a listed building.

The Administrative Court dismissed Crystal Property’s challenge under section 288 of the same Act. The central issue was whether the inspector had wrongly treated height and massing as matters for determination despite their being reserved matters.

Appeal dismissed. Lindblom LJ, with whom Tomlinson LJ agreed, held that the inspector’s decision was lawful.

1. The application was, as its form made clear, an outline application with all matters reserved. The unlabelled drawings could only sensibly be understood as illustrative. They showed a possible built form but did not cause scale, appearance, layout, access or landscaping to fall for determination at the outline stage.

2. The specified floorspace for the retail and office uses was an essential component of the proposal. That specificity was compatible with the reservation of scale under article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2010. Floorspace and scale are related but not synonymous: scale concerns the building’s dimensions in relation to its surroundings.

3. The inspector did not determine scale as a reserved matter. He was entitled to use the illustrative drawings, together with the stated floorspace and description of a four and five-storey building, to test whether the outline proposal was acceptable in principle. The appellant had advanced its case on that specific scheme and had not identified a materially different scheme capable of providing the same development.

4. The inspector was therefore entitled to conclude that the building shown would cause unacceptable harm to the streetscene and to the setting of the listed cinema, and would not comply with the site-specific policy. He was not required to speculate about a hypothetical alternative building or to calculate a policy-compliant amount of floorspace. The deputy judge had reached the correct result, although his reasoning incorrectly suggested that height and massing were formally before the inspector for determination.

• Court of Appeal (Civil Division)—dismissed Crystal Property’s appeal and upheld the inspector’s decision, while differing from part of the deputy judge’s reasoning: [2016] EWCA Civ 1265.
• Administrative Court (Planning Court)—on 15 January 2015, a deputy High Court judge dismissed Crystal Property’s challenge under section 288 of the Town and Country Planning Act 1990.
• Planning inspector—on 3 September 2014, dismissed the section 78 appeal against the council’s refusal of outline planning permission.