The much-awaited Supreme Court judgment has recently been handed down in what is termed ‘The Hillside Parks Case’. It was much anticipated because it deals with the effect of what is termed ‘drop-in’ planning permissions on an already commenced masterplan development for a full detailed non-phased planning permission.
It has long been industry practice to utilise drop-in planning applications within the context of established case law on overlapping planning permissions. When this case reached the Court of Appeal last year the Court held that the masterplan in question could no longer be delivered as result of multiple drop in permissions that were physically inconsistent with the masterplan in question. Some commentators took comments from the Court of Appeal judgment and suggested that competing permissions would in effect kill a Masterplan on implementation of the drop in and more worryingly that development already built out would as a result be unlawful. Whilst most in the industry did not consider this to be the case, the spectre of uncertainty had been raised. One factor that delays delivery is uncertainty.
Facts of the Case
In very broad terms, the case concerned a full detailed, non phased, planning permission granted in 1967 for 401 homes in the Snowdonia National Park, which was the subject of a detailed masterplan drawing (the Masterplan). The Masterplan showed the proposed layout of each house and the road system but in the years since it was granted only 41 houses had been built.
The status of that Masterplan permission was in dispute as a consequence of a series of later permissions which appeared to be for single unit dwellings that were granted and constructed, and which departed from the Masterplan. The question before Court was whether the Masterplan permission could still be built out. The effect of the later permissions (each of which affected individual parts of the wider Masterplan site) meant some houses were built on the main internal road network permitted by the 1967 Masterplan, and an estate road was constructed on areas identified for housing under the Masterplan. It is important to remember that with a full detailed non phased permission the local planning authority considers all details of that scheme and depending on the facts will consider the approved scheme to be a single integral whole.
The Court of Appeal held that the Masterplan permission was no longer valid because the later permissions meant that it was now physically impossible to complete the original Masterplan development which was conceived as a single scheme of development. Further development under the Masterplan would therefore be unlawful.
Supreme Court Judgment
The Supreme Court’s judgment considered the Court of Appeal’s decision and whether it would be unlawful to continue to carry out the remaining development pursuant to the Masterplan as a result of the implementation of multiple intervening drop in permissions which were a departure from the Masterplan when considered as a whole. The Supreme Court confirmed it would be unlawful on the facts of the case. We identify the following key points:-
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- The leading case on overlapping permissions Pilkington v Secretary of State for the Environment [1973] is upheld
- mere inconsistency between two permissions does not prevent a second permission from being implemented (for example where planning conditions differ) as long as the departure is non-material.
- where the first permission can be clearly and expressly interpreted on its terms as authorising “severable” component parts of development on discrete parts of the site, then it might be lawful to construct development on a component/severable part permitted by a different permission.
- there is no principle of abandonment of a planning permission in planning law and a planning permission can only be lost by provisions in statute or the terms of the permission itself.
- development already carried out under a permission (even if not then completed as a whole) is still lawful.
Practical Consequences
The effect of this is that the judgment effectively restricts the use of “drop-in” applications in relation to detailed, non phased planning permissions unless the differences are minor or non-material or save where it could somehow be shown that the area of the drop-in was in some way severable from the balance of the development authorised by the original permission.
Changes may still be made using S96A/S73 but to make a material further change to part only of a scheme would now require a fresh application in relation to the whole site (not just the part to be changed) even if some of the scheme has already been built out. How this would work in practice and the CIL implications of this require further consideration.
Approach Going Forward
The judgment does not expressly deal with the practice of phased permissions or outline/hybrid permissions with matters reserved for subsequent determination. That is creating uncertainty, but there is scope to say that the judgment should be interpreted on its facts, and it should not extend to phased or outline/hybrid permissions as there is no mention in the judgment of outline planning permissions, hybrid permissions or reserved matters applications and how they would be affected. We do not consider the reference in the judgment to ‘multi-unit’ schemes to be a reference to a phased scheme, but rather it is a description of a permission that permits more than one dwelling (i.e as in the Hillside case 401 units).
Going forward we would expect major permissions, in particular those that are to be delivered over a long period of time, to continue the practice of being set up as severable component parts through clear phasing of the site. Whilst the Supreme Court does not rule out the use of drop-in applications, the practice is now much more restricted for detailed non phased permissions. For other schemes it will be critical to ensure there is no inconsistency between any drop-in and the earlier permission in terms of conditions and phasing etc. so as to enable the continued delivery of the masterplan. In any event as the industry digests the Hillside case we anticipate that even more will be done through section 73 applications on major sites.
Finally, in areas where CIL is applicable, careful consideration will need to be given to the CIL consequences of the proposed new application suggested by the Supreme Court as a drop-in alternative (an issue that was not before the Court).