Appeal 6002785

The appeal is dismissed and approval of the reserved matters is refused, namely: appearance, landscaping, layout and scale details submitted in pursuance of conditions 1,2,13 attached to planning permission Ref ZB24/00021/OUT granted on 3 July 2024.

An application for costs was made by [site address] Council against Moorside Developments Ltd. This application is the subject of a separate Decision.

The named appellant details on the appeal form differ from the applicant details which are set out on the application form that was submitted to the Council. I am however content that the appellant has the authority in order for the appeal to proceed. As an appeal can only ordinarily proceed in the name of the applicant, it is those details which are included in the banner heading above.

The Planning Statement that was submitted with the application states that the application effectively seeks to discharge conditions 1, 2 and 13 of the outline planning permission Ref ZB24/00021/OUT (the outline planning permission). Conditions 1 and 2 relate to the timescales for the reserved matters. Condition 13 details the reserved matters and in this case they are the appearance, landscaping, layout and scale of the proposal.

The appeal was submitted on the basis of the failure of the Council to determine the application within the prescribed period. The Council has submitted an Appeal Statement which sets out a number of concerns and they are clear as putative reasons for refusal. They include that the site layout submitted as part of the reserved matters application proposes different access arrangements from that which was approved under the outline planning permission. The Council further considers that as the access arrangements approved under the outline planning permission would not align with those proposed at the reserved matters stage, this would lead to a fundamental inconsistency between the two consents, if the reserved matters were to be approved. The appellant disputes this position, referring to mistakes on the outline planning permission decision notice and a different interpretation of the relevant statutory provisions as what constitutes access and layout reserved matters, amongst other factors.

As this matter of dispute concerns whether the application for reserved matters which is the subject of my decision is consistent with the terms of the outline planning permission, this needs to be established prior to any consideration of the other matters of dispute between the Council and the appellant.

The main issue is whether the proposal which is the subject of the reserved matters is consistent with that which was approved under the outline planning permission.

The appeal site comprises an area of agricultural land which has been left ungrazed. It bounds residential properties along [address] to the south, from where access is currently taken to the land via a gate. Further residential properties associated with the village of Huby are found to the east. A band of trees is found along the north boundary with [site address] , beyond which are more occasional residential properties and sports and play facilities. The west boundary of the site is undefined from further agricultural land.

All matters were reserved on the outline planning permission apart from access. The access arrangements were shown on the indicative site plan1 submitted as part of that related application. Vehicular access was to be taken as an extension of the [address] highway that would terminate on the site in a cul-de-sac type arrangement. An adjacent footway for pedestrians would also be provided as an extension of the footway from [address]. A further pedestrian access was shown from [site address] that would meet the footway at the head of the cul-de-sac. Where this access would join [site address] , the plan is annotated ‘site access to play area and sports pitches’.

The site layout plan2 that was submitted as part of the reserved matters application shows different access arrangements. The vehicular and pedestrian access arrangements from [address] have been maintained, but the dedicated pedestrian access from [site address] has been omitted. This area now broadly falls in the proposed garden of [name].

Article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended) (the Order) when defining access, states ‘“access” in relation to reserved matters, means the accessibility to and within the site, for vehicles, cycles and pedestrians in terms of the positioning and treatment of access and circulation routes and how these fit into the surrounding access network. where “site” means the site or part of the site in respect of which 1 101 [name] 0001 2 S138.12.01 [name] outline planning permission is granted or, as the case may be, in respect of which an application for such a permission has been made.

Access as it formed part of the outline planning permission clearly fulfilled that definition when it was determined at that stage. As well as the access arrangements off [address], it included the proposed pedestrian access onto [site address] . That it fell only inside and up to the red line boundary does not lessen that it forms part of the approved access arrangements. It is clearly shown to provide an access onto [site address] , and the plan as approved indicates that it is a site access. While the drawing it was shown on at the outline stage was an indicative site plan, this does not apply to the access arrangements because they were to be decided at that stage. It is not therefore a matter that can be revisited under the ‘layout’ for the subsequent application which deals with the outstanding reserved matters, or overlaps into it. The distinction is clear in this case.

An application for approval of reserved matters is not an application for planning permission and there is no scope to reconsider matters which were dealt with at the outline stage. Accordingly, any sort of discrepancy between the outline planning permission including access and the reserved matters submission cannot be permitted. While the vehicular access arrangements would stay the same, clearly the pedestrian access arrangements would not. Nor is there any provision under the Order to carry out some form of balancing exercise against this procedural defect.

If the reserved matters were to be approved, the effect would be to have different access arrangements from those determined under the outline planning permission. This would be to render the planning permission incapable of being implementable in an authorised way. Nor is there the means at the reserved matters stage to impose a planning condition which relates to access, because it is a matter that was the subject of the outline planning permission.

Discrepancies between conditions on the outline planning permission have been drawn to my attention, and whether this conflicts with the description of development as was granted. Nevertheless, the pertinent point is that access was dealt with at the outline planning permission stage. Dealing with reserved matters cannot remedy issues with the existing outline planning permission.

In taking these factors together, I conclude that the proposal which is the subject of the reserved matters is not consistent with that which was approved under the outline planning permission. The submitted details are not authorised by the outline planning permission and so the proposal which is the subject of this appeal decision cannot proceed.

The remaining matters of dispute between the Council and the appellant consist of housing mix, the effect on a non-designated heritage asset, the effect on the living conditions of the occupiers of neighbouring properties by way of privacy, and whether the proposal would provide suitable living conditions for its future occupiers with regard to internal space and privacy. However, in light of my views on the procedural issue above, I do not have cause to consider these issues any further. The appeal decision rests on that the reserved matters as submitted are not consistent with the outline planning permission as regards access.

The appeal is dismissed and the approval of the reserved matters is refused.