The recent Supreme Court judgment on Hillside Parks Limited v Snowdonia National Park Authority has wide reaching consequences for sites which have multiple planning permissions and the practice of drop in applications.
The judgment reaffirms the Pilkington principle namely that where, as a result of physical alteration of land under one permission, it becomes physically impossible to carry out development authorised by an earlier permission, the earlier permission can no longer be relied on.
Facts of the case
Planning permission was granted in 1967 for 401 homes. This permission was granted subject to a masterplan showing an internal road network and different types of dwellings.
Subsequently, a series of seven planning permissions were granted which departed from the 1967 permission’s masterplan.
In 1987 litigation was commenced by the local planning authority who argued that the 1967 permission had lapsed. The Court found that the 1967 had been lawfully granted and could be lawfully completed at any time in the future.
Following this decision eight further permissions were granted (which also departed from the masterplan) resulting in 41 homes on the site.
In 2017 the local planning authority contacted the site’s owner stating that in its view the 1967 permission could no longer be implemented. This reopened the earlier 1987 decision, and the site’s owner argued was an abuse of process of court.
However, judgment was in the local planning authority’s favour. The judge stated that because of development over the years it was now “physically impossible” to implement the 1967 permission and future permissions pursuant to it would no longer be lawful.
The site owner challenged this decision, and its challenge was rejected by the Supreme Court which reaffirmed the Pilkington principle.
The Supreme Court added clarity to the Pilkington principle stating:
- that “mere incompatibility” with the terms of an earlier consent (for example a breach of planning condition) is not fatal to reliance on that earlier permission. What matters is whether it is physically possible to carry out the development authorised by the terms of the unimplemented permission. That is a factual question which depends on (i) the terms of the unimplemented permission and (ii) what works have already been done.
- It is only where there are “material departures” that a developer would be unable to rely on an existing permission.
The judgment provides useful guidance on overlapping permissions:
- abandonment: The Court confirmed the general principle that there is no scope in planning law for a planning permission to be abandoned mid development. a failure to complete a development does not make what has been built out unlawful.
- if a development cannot be completed fully in accordance with the planning permission, then this does not render everything built unlawful - even in relation to a single building
- multiple planning permissions could be used to build out a site provided they operate sequentially, or a latter permission covers the whole site
Practical effects of the judgment
Where there is a full planning permission (which is not phased) any development pursuant to an original permission, which has not been carried out before the implementation of a drop-in permission, could be rendered unlawful.
A developer carrying out a large development, wishing to depart from the approved scheme in one particular area of the site will face difficulties because even on phased developments, Hillside may be applicable. Developers in the middle of large masterplan developments and those acquiring part of such a site where development is ongoing will need to exercise caution.
It is still possible to vary planning permissions in the following ways:
- to apply for a permission for the whole site (including what has already been constructed), showing the modification. This will mean amending previously submitted documents and will incur potentially significant additional costs. If parts of the site have been sold, it will be necessary to include those parts within the planning application. This may create difficulties if there are no contractual obligations governing the submission of new applications and may not be possible because of the need for new s106 agreements with multiple parties who may not be willing to enter into them.
- It may still be possible to use drop-in applications in conjunction with applications to amend conditions (s.73) as well as non-material amendments (s.96A). A s96A could be used to vary the description of development to include severability (phasing) and to include a phasing plan. This in turn could be used to make amendments to a specific phase.
- Drop in applications will still be possible where the incompatibility between the two permissions is not material because Pilkington is not engaged in that scenario. Whether or not a change will be material should be considered on the context of the scheme as a whole. If possible, to delay the drop in application until all the phases of the original permission that the developer wishes to carry out have been completed, then the risk is removed, as the case has confirmed that any development already completed under the original planning permission is lawful.
- Clause 98 of the Levelling-Up and Regeneration Bill currently before Parliament will, if enacted, insert a new section 73B into the 1990 Act giving the local planning authority power to grant a planning permission that varies an existing permission but only if the local planning authority is satisfied that “its effect will not be substantially different from that of the existing permission."
Developers should consider:
- Phasing -including express wording in a description of development to identify that individual components of the development are to be phased and are severable.
- Hybrid consents- the use of hybrid (part full/outline) consents for defined phases of development for large sites.
- Timing of amendments - consideration must be given to when to propose amendments given that the greater the number of phases remaining to be built out, the greater the level of planning risk because they may all need to be the subject of a future application and changes to planning policy/political make-up of the local planning authority may influence a future decision.
- Consideration of the scheme- full consideration at the outset so as to minimise the possibility of a future drop-in permission and whether it might be beneficial to bring forward a masterplan with a series of full applications rather than having different parties undertake reserved matters applications on different areas.