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.
I accept the Council's counsel's submission that "detailed planning permission" is apt to describe, and is in fact used in legal textbooks and decisions of the court to refer to approvals and permissions granted pursuant to an outline planning permission. By way of further example, this is the use found in Freemont (Denbigh) Ltd v Knight Frank LLP  EWHC 3347 (Ch),  P.N.L.R. 4. In the absence of a definition of the term in the relevant legislation, this constitutes the ordinary and natural meaning of the term. Further support for this meaning is found in the 2015 permission itself, which refers to the 2013 permission as a "planning permission".