If an application for reserved matters approval has been submitted within the 3 year period and refused, can a further reserved matters application be made outside the 3 year period?

Outline planning permissions and reserved matters conditions

S.92 of the Town and Country Planning Act 1990 (TCPA90) provides as follows:

“(2) Subject to the following provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions to the effect—

(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of three years beginning with the date of the grant of outline planning permission; and
(b) that, in the case of outline planning permission for the development of land in England, the development to which the permission relates must be begun not later than the expiration of two years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved;
[…]

(4) The authority concerned with the terms of an outline planning permission may, in applying subsection (2), substitute, or direct that there be substituted, for the periods referred to in that subsection such other periods respectively (whether longer or shorter) as they consider appropriate.

(5) They may also specify, or direct that there be specified, separate periods under paragraph (a) of subsection (2) in relation to separate parts of the development to which the planning permission relates; and, if they do so, the condition required by paragraph (b) [or (c)] of that subsection shall then be framed correspondingly by reference to those parts, instead of by reference to the development as a whole.

(6) In considering whether to exercise their powers under subsections (4) and (5), the authority shall have regard to the provisions of the development plan and to any other material considerations.”

Examples of conditions attached to an outline permission that are consistent with s.92 are as follows:

Commencement: The development hereby permitted shall be commenced before the expiration of 3 years from the date of this permission or 2 years from the approval of the last of the reserved matters as defined in the condition below, whichever is the later.

Approval of Reserved Matters:

• Detail of the reserved matters set out below (“the reserved matters”) for each phase of the development shall be submitted to the Local Planning Authority for approval within 3 years from the date of this permission or within 3 years from the date of the last reserved matters for the previous phase of development:
  • Layout
  • Scale
  • Appearance
  • Access; and 
  • Landscaping. 
• The reserved matters shall be carried out as approved.
• Approval of all reserved matters shall be obtained for the relevant phase of development from the Local Planning Authority in writing before any phase of development is commenced.

Submission of a reserved matters application (RMA)

As with any planning permission that requires details to be submitted to and approved by a local planning authority (LPA) after the grant of consent, what the developer must do, and the trigger for doing it, to discharge the condition so that the permission can be lawfully implemented is to be found in the wording of the condition itself. 

In the example above, the outline planning permission (OPP) is a phased one, the developer is permitted to discharge reserved matters by phase. The details of what the developer must submit it clearly set out. When the developer must submit the required details is also clear, with the RMA for each phase being required to be submitted no later than 3 years from the approval of the RMA for the previous phase. This does not prevent the developer submitting RMA early if desired, or submitting RMAs for phases concurrently. 

Submission not in accordance with a condition

A situation can arise where a developer does not follow the requirements of a condition; the detail requested by the condition is not submitted, or is insufficient, or the application to discharge is made late, for example, post-occupation when the condition required submission and approval of details before first occupation occurred. Usually these failures will not be fatal, the developer can submit additional information, or only partially discharge the condition, and whilst a LPA could enforce against late submission of details, perhaps seeking injunctive relief to restrain occupation, the development itself would remain lawful, and the permission extant. Even if the discharge of condition application is refused, the developer should be able to make a fresh application to discharge it, even if (in the second example) this is at a point in time even further past the date of occupation than the earlier refused application. 

Conditions that contain a timing constraint are, however, different, and a failure to comply with the terms of these conditions can be fatal and result in a permission lapsing. Timing conditions can take two forms, both forms are demonstrated in the examples provided above, namely a requirement to implement the permission within X years of the date of the permission (see s.91(1) TCPA90); and a requirement (only seen on OPPs) to submit reserved matters within X years of the date of the permission and implement it within X years of the approval of reserved matters (see s.92(2) TCPA90). If a permission is not implemented by the required date it lapses; if a RMA is not made by the required date then the permission (or that phase of the permission and indeed subsequent phases) lapses. In the same way that a permission cannot be implemented out of time, so equally a RMA cannot be submitted out of time.

A failure to submit a RMA by the date required in the permission is therefore fatal. The permission will lapse. In a phased permission that phase and any subsequent phase will lapse, although earlier approved phases will be unaffected. It is also worth remembering s.73(5) TCPA90 which is clear that any failure to commence work on time, or submit RMAs on time cannot be resolved (in England) via as.73 application to seek to extend the time for commencing works or the time for submission of RMAs. 

“(5) Planning permission must not be granted under this section [for the development of land in England] to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which—
(a) a development must be started;
(b) an application for approval of reserved matters (within the meaning of section 92) must be made.”