WildFish v Buckinghamshire Council: Key Lessons on Reserved Matters and Section 73

The Court of Appeal found in the case of R (WildFish) v Buckinghamshire Council & Ors [2026] EWCA Civ 283 that approval of the reserved matters had been lawfully made.

Background

Outline planning permission for up to 170 dwellings was granted on 24 March 2022 to developer David Wilson Homes (South Midlands). Condition 13 of the outline permission required the foul water drainage scheme, including a wastewater treatment capacity assessment and programme of any upgrade works to be agreed with Anglian Water and restricted occupation of any of the development until such agreement had been confirmed to the Council and the upgrades identified in the scheme had been completed.

A reserved matters application was submitted to the Council on 25 May 2023.

Prior to determination of the reserved matters application, the developer submitted to the Council a section 73 application to vary condition 13 of the outline permission because, when engaging with Anglian Water to agree the programme of upgrade works (pursuant to condition 13), Anglian Water informed them it could not currently accommodate the additional flows. The developer therefore sought a variation to the condition to allow the drainage details to be provided prior to occupation rather than alongside the reserved matters application. The s73 permission was granted by the Council on 10 December 2024.

On 4 March 2025 the Council granted the reserved matters approval which included the amendment to the description of the reserved matters application to be pursuant to the outline permission “as varied by” the section 73 permission.

Case

Environmental group WildFish challenged the decision of the Council to approve the reserved matters. WildFish advanced two grounds of appeal:

(1) There was a substantial alteration to the reserved matters application which the Council had no power to approve;

(2) It was unlawful to switch the reserved matters application from one parent permission (the outline permission) to another (the section 73 permission) in particular when the timescale for submitting the reserved matters under the section 73 permission had clearly expired

Reserved matters application

The court held that:

• the drainage condition was not a reserved matter merely because drainage information was relevant to the development. Reserved matters have their statutory meaning. The five species of reserved matters created by Article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 are prescriptive. The reserved matters in this case were the four aspects of design for the detailed scheme which were identified as the reserved matters within the terms of condition 1, and the drainage scheme required by condition 13 was not part of the reserved matters governed by the time for approval contained in condition 2;
• the offsite upgrades to the wastewater recycling centre were governed by the need for confirmation of agreement with Anglian Water prior to commencement of development. This further reinforces the conclusion that condition 13 was not governed by the time limits in condition 2. Thus, the reasonable reader would conclude the reference to condition 1 in condition 13 is simply a cross-reference to the practical consideration that the four reserved matters to be detailed in the reserved matters application would need to take account of the necessity of a foul water drainage scheme for the site itself;
• it follows that the approval of the reserved matters did not involve a breach of condition 13 since provision of all information to discharge the condition was not governed by the timescale set out in condition 2, nor was it required to include all of the details required in condition 13 to be a valid application.

Section 73 permission

The court reiterated the well understood position that a section 73 permission is a separate planning permission.

The starting point for the court when considering all the documents together was that the application for reserved matters was at all times related to the outline permission.

The court held that:

• the mere reference in the amendment to the description of the reserved matters application to that of an entirely separate permission was not capable of either transferring the reserved matters application to that entirely separate permission or leading inference that permission was being granted under both the outline permission and the section 73 permission
• whilst there was in fact a variation of the description of the reserved matters application there was no amendment in substance. There was certainly no amendment so as to make it an application for approval of reserved matters under the section 73 permission rather than the outline permission

Question unanswered

The court did not comment as to whether a reserved matters application applied for under an outline permission could be approved under a subsequent section 73 permission in addition to or instead of the outline permission.

Conclusion

The judgement serves as a helpful reminder for the need for local planning authorities and developers to be fully aware of how approvals function between reserved matters, discharge of conditions and section 73 permission.

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