The recent court decision in Loxley Investments Ltd v Dartford Borough Council EWHC 1274 (Ch) could put developers and landowners at risk in relation to unintended overage payments. 

The court decided that an overage payment which was triggered upon the grant of "any detailed planning permission", could be triggered by the approval of reserved matters pursuant to an existing outline planning permission - even where this was not the intention of the developer and/or landowner.

The case should prompt landowners and developers to check existing overage mechanisms  in order to ensure that existing or anticipated reserved matters planning approvals have not and will not trigger unwanted overage liability.

Comment: Overage provisions are entered into usually in order to address any future enhancement value over and above a previously obtained planning consent. The decision in the case could result in developers paying planning uplift twice for the same planning consent, or landowners missing out on future overage uplift - since many overage mechanisms operate on a once only basis after which they are released.

Link to section of the case report below.