Town and country planning – Planning permission – Residential development – Appellant developer appealing against decision of High Court that further development of site with planning permission for residential accommodation unlawful – Whether original permission authorising single scheme of development – Appeal dismissed
In 1967, the respondent’s predecessor granted the appellant’s predecessor planning permission for a residential development comprising 401 dwellings on 28.89 acres of land at Balkan Hill, Aberdyfi in Snowdonia National Park. A number of variations were made to the original plan and, in 1987, the High Court held that the 1967 permission had been lawfully granted, the development had begun and could be lawfully completed at any time in the future.
The appellant purchased the site in 1988 and further building works were carried out. By 2017, only 41 dwellings had been completed and the respondent took the view that the 1967 permission could no longer be implemented because the developments carried out in accordance with later planning permissions rendered it impossible to implement the original master plan. Accordingly, the respondent required all work on the site to be stopped until the planning situation had been regularised.
The High Court determined that the development 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. The court rejected the appellant’s argument that the exception in F Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P&CR 111 applied: [2019] EWHC 2587 (QB).
The appellant appealed contending that: (i) the effect of subsequent variations to the 1967 permission was res judicata because it had been determined by the court in 1987; (ii) until 2017, the respondent had accepted that the development could go ahead and had agreed to variations and it would be an abuse of process for it now to pursue a contrary argument; and (iii) the judge was wrong to conclude that the exception in Lucas did not apply and that the 1967 permission authorised one single scheme of development.
Held: The appeal was dismissed.
(1) The three particular principles which potentially arose in the present case were: (i) the doctrine of “issue estoppel”, where some issue which was necessarily common to both disputes had been decided on an earlier occasion and was binding on the parties; (ii) the principle based on the rule in Henderson v Henderson (1843) 3 Hare 100, which precluded a party from raising in subsequent proceedings matters which were not, but could and should have been, raised in the earlier case; and (iii) the more general procedural rule against abusive proceedings: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160 followed.
The judge had approached his task on the basis that, regardless of whether it was correct to conclude in 1987 that the remaining development could be completed in accordance with the 1967 permission, such a conclusion could no longer be reached. Therefore, much of the argument about res judicata was not to the point.
The issue with which the judge was dealing concerned developments since 1987. The doctrine in Henderson/abuse of process was not absolute. It required a merits-based assessment of all the facts, including the public and private interests concerned. In that context, there were important private interests, including the commercial interests of the appellant. However, there were also important public interests at stake, including the public interest in not permitting inappropriate development in a national park.
There had been significant legal developments since the judge’s decision in 1987. In particular, the decision of the House of Lords in Sage v Secretary of State for the Environment [2003] UKHL 22; [2003] PLSCS 81 had placed greater emphasis on the need for a planning permission to be construed as a whole. It was now clearer than it was before 2003 that a planning permission needed to be implemented in full. A holistic approach was required. Reflecting the holistic structure of the planning regime, for a development to be lawful it had to be carried out fully in accordance with any final permission under which it was done. If a development for which permission had been granted could not be completed because of the impact of other operations under another permission, that subsequent development as a whole would be unlawful: Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin); [2011] PLSCS 3 considered.
(2) While the stance which the respondent took before 2017 was a relevant factor to be taken into account, it was not conclusive that it had acted in a way which led to an abuse of process because it was now arguing the contrary in these proceedings. In view of the factual and legal developments since 1987 and after balancing the public and private interests at stake in this case, it was not an abuse of process for the respondent to seek to argue the points which it had. Further, the judge was entitled to reach the conclusion which he had on the evidence before him.
(3) In Lucas, the court held that a planning permission, on its true construction, authorised a number of independent acts of development as opposed to one single development scheme. That was a highly exceptional case which did not apply in the present case. It had never been approved by an appellate court and had apparently never been followed or applied by any court since. It would not be appropriate for the present court to overrule Lucas since it was not possible to be satisfied that it was wrongly decided on its particular facts. It was conceivable that, on its proper construction, a particular planning permission was for the development to take place in a series of independent acts, each of which was separately permitted by it. But that was unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically, there would be not only many different residential units to be constructed in accordance with that scheme, there might well be other requirements concerning highways, landscaping, possibly even employment or educational uses, as an integral part of the overall scheme. It was doubtful whether a developer could lawfully pick and choose different parts of the development to be implemented.
Robin Green (instructed by Aaron & Partners LLP) for the appellant; Gwion Lewis (instructed by Geldards LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Hillside Parks Ltd v Snowdonia National Park Authority
