E.11: Outline Planning Applications
Introduction
This section is intended to draw together all of the commentary and advice about outline planning applications and EIA that is found elsewhere in this Handbook. It therefore contains no new or different material than that found in the sections B.4, D.4 and E.6 above.
Applying the EIA Regulations to Outline Planning Applications
Where it applies, the Directive requires EIA to be carried out prior to the grant of “development consent”. Development consent is defined as “the decision of the competent authority or authorities which entitled the developer to proceed with the development”. Under the UK planning system, it is the planning permission that enables the applicant to proceed with the development. Therefore, where EIA is required for a planning application made in outline, the requirements of the Regulations must be fully met at the outline stage since reserved matters cannot be subject to EIA.
The planning permission and the conditions attached to it must be designed to prevent the development from taking a form - and having effects - different from what was considered during EIA. This was confirmed in the case of R V SSTLR ex parte Diane Barker (2001).
The cases of R v Rochdale MBC ex parte Tew (1999) and R v Rochdale MBC ex parte Milne (2000) set out the approach that planning authorities need to take when considering EIA in the context of an application for outline planning permission if they are to comply with the Directive and the Regulations. Both cases dealt with a legal challenge to a decision of the authority to grant outline planning permission for a business park. In both cases an Environmental Statement was provided. In ex parte Tew the Court upheld a challenge to the decision and quashed the planning permission. In ex parte Milne, the Court rejected the challenge and upheld the authority's decision to grant planning permission.
In ex parte Tew, the authority authorised a scheme based on an illustrative masterplan showing how the development might be developed, but with all details left to reserved matters. The Environmental Statement assessed the likely environmental effects of the scheme by reference to the illustrative masterplan. However, there was no requirement for the scheme to be developed in accordance with the masterplan and in fact a very different scheme could have been built, the environmental effects of which would not have been properly assessed. The Court held that description of the scheme was not sufficient to enable the main effects of the scheme to be properly assessed, in breach of Schedule 4 of the Regulations.
In ex parte Milne, the Environmental Statement was more detailed; a Schedule of Development set out the details of the buildings and likely environmental effects, and the masterplan was no longer merely illustrative. Conditions were attached to the permission to “tie the outline permission for the business park to the documents which comprise the application”. The outline permission was restricted so that the development that could take place would have to be within the parameters of the matters assessed in the Environmental Statement. Reserved matters would be restricted to matters that had previously been assessed in the Environmental Statement. Any application for approval of reserved matters that went beyond the parameters of the Environmental Statement would be unlawful, as the possible environmental effects would not have been assessed prior to approval.
The Judge emphasised that the Directive and Regulations required the permission to be granted in the full knowledge of the likely significant effects on the environment. This did not mean that developers would have no flexibility in developing a scheme. But such flexibility would have to be properly assessed and taken into account prior to granting outline planning permission.
He also commented that the Environmental Statement need not contain information about every single environmental effect. The Directive refers only to those that are likely and significant. To ensure it complied with the Directive the authority would have to ensure that these were identified and assessed before it could grant planning permission.
The Court of Appeal in ex parte Diane Barker (2001) confirmed this approach and there are some general conclusions that can be drawn about applications for outline planning permission:
- An application for a "bare" outline permission with all matters reserved for later approval is extremely unlikely to comply with the requirement of the Regulations;
- When granting outline consent, the permission must be “tied” to the environmental information provided in the Environmental Statement, and considered and assessed by the authority prior to approval. This can usually be done by conditions although it would also be possible to achieve this by a planning agreement (under section 75 of the Town and Country Planning (Scotland) Act 1997).
- An example of a condition was referred to in ex parte Milne (2000). “The development on this site shall be carried out in substantial accordance with the layout included within the Development Framework document submitted as part of the application and shown on (a) drawing entitled ‘Master Plan with Building Layouts’.” The reason for this condition was given as “The layout of the proposed Business Park is the subject of an Environmental Impact Assessment and any material alteration to the layout may have an impact which has not been assessed by that process.” (see paras 28 and 131 of the judgement);
- Developers are not precluded from having a degree of flexibility in how a scheme may be developed. But each option will need to have been properly assessed and be within the remit of the outline permission
- Development carried out pursuant to a reserved matters consent granted for a matter that does not fall within the remit of the outline consent will be unlawful.
Scoping An Outline Planning Application
Where outline planning permission is sought, it may not be possible to predict impacts on the natural heritage at this stage, because the details of the development are insufficiently described or unknown. Therefore, the information in the EIA can only inform the decision in principle on whether development of the nature proposed is acceptable at all on the site.
Circular 15/1999, paragraph 48 provides the following advice on outline applications as follows:
"Where EIA is required for a planning application made in outline, the requirements of the Regulations must be fully met at the outline stage since reserved matters cannot be subject to EIA. When any planning application is made in outline, the planning authority will need to satisfy themselves that they have sufficient information available on the environmental effects of the proposal to enable them to determine whether or not planning permission should be granted in principle. In cases where the Regulations require more information on the environmental effects for the Environmental Statement than has been provided in an outline application, authorities should request further information under regulation 19. This may also constitute a request under article 4(3) of the GDPO".
Requesting further information for Outline Planning Applications
When any planning application is made in outline, the planning authority will need to satisfy themselves that they have sufficient information available on the environmental effects of the proposal to enable them to determine whether or not planning permission should be granted in principle. In cases where more information is required, authorities should request further information on the Environmental Statement as described below.
Where Outline Planning Permission is sought, it may not be possible to predict impacts on the natural heritage with the information submitted, because the details of the development are unknown. Therefore, the information in the EIA can only inform the decision in principle on whether development of the nature proposed is acceptable at all on the site. If the information available in the Environmental Statement at this stage is insufficient to determine whether the development is acceptable in principle, the planning authority should require such information to be submitted as it is reasonably necessary to assess the likely environmental effects of the proposal or they should refuse planning permission, possibly with an indication that a detailed application would be considered if it is supported by an Environmental Statement. (See also para 48 of Circular 15/1999).
In respect of all planning applications, the planning authority has the power to require information to be submitted under two statutory provisions, namely:
- Regulation 19 of the EIASR 99, requiring submission of:
- any further environmental information to enable the application to be determined; or
- information concerning any matter which is required to be dealt with in the Environmental Statement (ie, matters in Schedule 4 EIASR 99); or
- information reasonably required to give proper consideration to the application; or
- evidence to verify any information in the Environmental Statement; or
- Article 13 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 requiring any further information in order to enable them to deal with the application.
In respect of outline planning applications, the planning authority has the power to require reserved matters to be submitted under the provisions of Article 4(3) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992. This enables a planning authority to require the submission of all or any reserved matters that the planning authority considers it to be necessary to consider before the grant of an outline planning permission. However, whereas there is no limit to the period in which the other provisions can be used to require information to be submitted, there is a one month time limit on the use of Article 4(3) requiring reserved matters to be submitted.
Thus, requests for some of the reserved matters to be submitted must be made by the planning authority within one month under Article 4(3) of the GDPO; requests for further information about the proposal that forms the subject of the planning application should be obtained (at any time) by means of Article 13 of the GDPO; and further information on the environmental impacts of the proposal should be obtained (at any time) by means of Regulation 13 of the EIASR 99.
Which of the reserved matters SNH needs to have addressed by the planning authority before it can reasonably determine the application is dependant on the nature of the proposal and the nature of the natural heritage sensitivities of the site. A proposal on or near a bog or mire, for instance, will require details of such reserved matters as access and road drainage so that their hydrological effects can be assessed. Where there are landscape and visual sensitivities, the siting, mass, and height of the main components of the development, and possibly ancillary development such as roads, car parks, etc., will be necessary. Each proposal, however, is unique and will have to be considered carefully. If in doubt, contact AS Planning Group for further advice.