In Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440; [2020] PLSCS 199, the Court of Appeal confirmed that a planning permission cannot be lawfully implemented where events that have occurred since the grant of permission render the permitted development a physical impossibility.
Planning permission was granted on 10 January 1967 for the development of 401 dwellings on a 28.89-acre site at Balkan Hill, Aberdyfi. The permission was granted without any time limit condition, and incorporated a “master plan” which detailed an internal road network and house types.
Construction of the first two houses commenced in March 1967, and a number of further permissions were subsequently granted allowing departures from the master plan. Following a dispute over the validity of the 1967 permission, Drake J gave judgment in July 1987 and held that the development had begun and may be lawfully completed at any time in the future.
A further eight permissions allowing departures from the master plan were granted between 1996 and 2011. In May 2017, the Authority advised the appellant that the 1967 permission could no longer be lawfully implemented because the developments carried out under later planning permissions rendered it impossible to implement the original master plan.
The appellant commenced proceedings at the High Court. In his judgment, HHJ Keyser QC concluded that Drake J did not err in law and was entitled to make the declaration that the 1967 permission could be completed at any time in the future.
However, he held that development which had occurred since 1987 rendered the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful.
What had been constructed on the site since 1987 did not accord with the approved master plan, as it consisted of different housing types and roads which were incompatible with the master plan road layout. This meant it was not physically possible to build out the entirety of the scheme approved in 1967.
There were also significant legal developments since the decision of Drake J in 1987, in particular Sage v Secretary of State for the Environment [2003] UKHL 22; [2003] PLSCS 81, which placed greater emphasis on the need for a planning permission to be construed as a whole and that a “holistic approach” should be taken to its interpretation.
The Court of Appeal upheld the High Court’s decision and held that the judge was entitled to reach the conclusion that events since 1987 have made it impossible for the original planning permission of 1967 to be completed. The case confirms that, for a development to be capable of being recommenced after a long delay, it must be capable of being fully built out in accordance with the permission under which it was originally approved.
Megan Forbes is a solicitor in the planning team at Irwin Mitchell
