The Supreme Court today dismissed a potentially landmark case brought by the Snowdonia National Park over planning permission to build an estate granted more than 50 years ago.
Developers have been building on the site since. Various planning permissions have been granted, and there has been a history of litigation. However, in 2017 the local planning authority decided that a 1967 planning permission was no longer valid as changes to the development over the past 50 years had made it impossible to implement the masterplan on which the 1967 planning permission was based.
Developer Hillside Parks challenged this and lost in 2020, when the Court of Appeal held that planning permission cannot lawfully be implemented where events since the grant of permission make the permitted development impossible ([2020] EWCA Civ 1440; [2020] PLSCS 199).
Hillside appealed to the Supreme Court, and in a ruling handed down today (2 November) the court again rejected its challenge.
Developers “cannot pick and choose different elements of different permissions”, said Lord Justice Sales, giving judgment this morning.
The masterplan “has been fatally compromised by other developments”, so Hillside Parks cannot now choose to rely on elements of the 1967 permission, he added.
The case has been followed closely by the planning sector because of its potential to affect large housing developments that take a long time to complete. It also had the potential to render previously lawful developments unlawful.
The judgment was written by Sales LJ and Legatt LJ. From the outset they stated the importance of the case to the planning sector.
“This appeal raises issues of importance in planning law about the relationship between successive grants of planning permission for development on the same land and, in particular, about the effect of implementing one planning permission on another planning permission relating to the same site,” they said at the start of the judgment.
Much of the argument at the hearing in July was about the interpretation of Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, the standard ruling on inconsistent planning permissions.
In Pilkington, it was decided that, where development has taken place under one permission, whether another planning permission may lawfully be implemented depends upon whether it remains physically possible to carry out the development authorised by the second permission in light of what has already been done under the first permission.
According to David Wood, a senior associate at Hogan Lovells, today’s ruling endorses the principles underlying the Pilkington case and contains some “important clarifications” for practitioners.
“Helpfully, today’s judgment removes some of the uncertainty which arose from the Court of Appeal’s suggestion that in order for development to be lawful, a planning permission must be implemented ‘fully’,” Wood said.
The Supreme Court today removed this uncertainty, Wood said, and makes it clear that planning permission is “permissive”.
“The failure to complete a project for which permission has been granted does not make development already carried out pursuant to the permission unlawful – but the permission doesn’t authorise any further development if compliance with it becomes physically impossible (for example where an inconsistent planning permission is implemented),” he said.
Even so, the Supreme Court has left some questions unanswered.
Wood added: “Where a developer has been granted a full planning permission for an entire scheme and wishes to depart from it in a material way, the Supreme Court says the answer is to modify the approved scheme by seeking an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. As the appellant’s counsel noted, this has the potential to have serious practical implications for developers.”
The ruling also did not directly address the “important” practice of using so-called “drop-in” permissions to secure changes to discrete parts of a development, he said. This is because the circumstances in this case did not demand it.
“One of the key challenges developers have faced when considering drop-ins has been the nervousness of planning authorities,” Wood said.
“Although the judgment provides some clarity on the position, it seems unlikely that it has done enough to address this entirely. The attitude of the planning authority is therefore likely to remain a key factor in the ability to use drop-ins going forward.”
The case was heard in July before Supreme Court Justices Lord Reed, Lord Briggs, Lord Sales, Lord Leggatt and Lady Rose.
Hillside Parks Ltd v Snowdonia National Park Authority
Supreme Court (Lord Reed, Lord Briggs, Lord Sales, Lord Leggatt, Lady Rose) 2 November 2022
See also: Planning – mountain, molehill or Hillside Parks?
