Covid-19 As A Material Consideration

The idea for this blog post started by way of a search we did this week for inspectors’ appeal decision letters that take into account the economic and other effects arising from the current pandemic.

There does not seem to have been any proper analysis on that at present (and this post doesn’t fill the gap!). Instead most people’s focus has been on the specific legislative measures that have been introduced by the Government and its narrow policy exhortations (for instance in relation to limited aspects of the CIL regime).

Before I turn to that appeals search, can I say two more things on the legislative changes.

First, a further round of amendments to the GPDO were laid before Parliament on 11 November (the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020). Aside from extending some temporary permitted development rights (outdoor markets; takeaway food operations from restaurants, cafes and drinking establishments, and some emergency development rights), there are two permanent amendments:

⁃ introduction from 6 April 2021 of a requirement that dwellings created by way of the operation of permitted development rights must meet the nationally described space standard

⁃ Prohibition on the demolition of any building is used, or was last used, for the purpose of a concert hall, venue for live music performance or theatre. (“This permanent change is to protect these venues, preventing their unnecessary loss as a result of having to close due to the coronavirus pandemic.” As a trustee of the Theatres Trust I am particularly pleased to see this now in legislation, following the initial ministerial statement on 14 July 2020).

Secondly, I covered the Rights: Community: Action judicial review of the previous recent GPDO and Use Classes Order changes in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR. That claim was rejected by Lewis LJ and Holgate J last week in R (Rights: Community: Action) v Secretary of State (Divisional Court, 17 November 2020). There are plenty of other summaries of that judgment and there is nothing particularly novel about it but I was interested in the references to the evidence submitted by MHCLG as to the Covid-19 factors that led to the legislation being introduced in the form and way that it was, and the weight that was given to these matters in the judgment:

“Mr Simon Gallagher is the Director of Planning for MHCLG. In paragraph 10 of his witness statement he states that during the period January to March 2020 the first patients in the UK tested positive for Covid-19 and the first transmissions in the UK were confirmed. He says that the pandemic “has generated an economic emergency and upheaval of a scale and intensity not previously known in peacetime.” He continues by stating that, as a consequence, the Government has had to intervene urgently in the economy as a whole in unprecedented ways in order to avert or minimise potentially very severe and long term impacts on the lives of citizens and the prospects for future economic growth. Forecasts for economic growth were reduced substantially. Indeed, one key forecast made in summer 2020 predicted a reduction in the economy for 2020 of 9.9% (paragraph 13). Through regular discussion with representatives of the housing and construction sectors, the MHCLG became aware of particular difficulties faced by the construction sector as a result of the pandemic. There was a record monthly decline of 40.2% of construction output in April 2020. Whilst the output of that sector had increased in May, June and July, it was still 11.6% lower in July 2020 compared with February 2020 (paragraph 14).

On 20 July 2020 a submission was put to the Minister for Housing asking him to approve the three statutory instruments. The submission records that it had been decided that in order to support economic renewal and regeneration and to respond to the economic crisis caused by the pandemic, additional PD rights for the redevelopment of vacant buildings for residential purposes and a broad Use Class of business, commercial and service uses would be introduced without consultation (paragraphs 2 to 3). The Minister’s attention was drawn to criticisms that the recently enacted PD right for allowing the addition of 2 storeys to blocks of flats lacked any requirement for the provision of affordable housing (paragraph 7). The submission referred to the same point when discussing the application of the PSED to the proposed statutory instruments (paragraph 10). The PSED assessments and impact assessments for each statutory instrument were provided to the Minister.

The Explanatory Memoranda for SI 2020 No. 755 and SI 2020 No. 756 stated that the new PD rights were being introduced to speed up the delivery of housing, reduce the need to develop on greenfield land and to support economic recovery from the pandemic by encouraging development. The Explanatory Memorandum for SI 2020 No. 757 stated that the UCO 1987 was being amended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands and to help town centres recover from the economic impact of the pandemic.”

The judges had in part to consider whether the lack of a further consultation stage, which had been previously intended in relation to some of the measures, was justified:

“The explanatory memorandum for the draft SI 2020 No 755 and SI 2020 No. 757 again summarised briefly the degree of support for, and opposition to, the proposal, and the concerns that had been raised. The explanatory memorandum for the draft SI 2020 No 756 referred to the consultation responses and noted that there was to have been a further consultation but it had been decided to introduce the PD right without further consultation in order to support economic regeneration. It noted that the Government had considered the range of matters to be left to planning authorities for prior approval while maintaining a simplified planning system. In those circumstances it is not arguable that the defendant failed conscientiously to consider the consultation responses. The decision on whether to proceed, and if so what provisions to include in the SIs, in the light of the consultation responses and other relevant matters were questions for the defendant to determine.”

The judges, did not consider that the Government had acted unlawfully in not carrying out further consultation:

“First, the defendant has established that there were good reasons for departing from the promise in the present case and not having a second consultation on the proposals for PD rights for demolition of commercial or residential buildings and rebuilding for residential use. The coronavirus pandemic had led to severe economic difficulties including a reduction in the rate of construction and planning applications. The government decided to grant the PD rights in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic. That appears from the terms of the explanatory memorandum to SI 2020 No. 576.The matter is fully explained in the witness statement of Mr Gallagher who refers to the large-scale public health emergency created by the coronavirus pandemic which in turn generated an economic emergency and upheaval on a scale not previously known in peacetime. The Government had sought to intervene in the economy in unprecedented ways to minimise the very severe effects of the pandemic. In the light of that, the decision was taken in favour of urgent action rather than further consultation.

Secondly, the reasons are proportionate in the circumstances. On the one hand, the decision to depart from the promise deprived the public of the opportunity of making further representations on the proposed PD rights and deprived the Government of further, potentially helpful, input into the policy decision. On the other hand, the economic situation was grave. The grant of PD rights was intended to encourage developers to start the process of taking steps to carry out developments. That in turn would contribute to addressing the economic effects arising out of the pandemic. That was a proportionate course of action in the circumstances. It is correct that developments could not be begun until prior approval of certain matters had been obtained. But the aim was to stimulate the process of development in circumstances of economic urgency. It is correct that the PD rights would continue after the end of the current pandemic (unless amending legislation is enacted) but that does not render departure from the promise of further consultation disproportionate. It is correct that there was a proposal to create PD rights which involved further consultation. But circumstances had changed because of the pandemic. The reasons given for departing from the promise of further consultation were good and were proportionate.”

The economic situation is indeed “grave”!

So how are inspectors responding to it in their appeal decisions, and in the absence of any general guidance from Government which might for instance have advised decision makers to give additional weight to the interests of economic development and the provision of housing? JLL’s Asher Ross drew attention on LinkedIn last week to the Government’s publication on 18 November 2018 of the latest Planning Inspectorate Statistics. I haven’t delved into them yet but reproduce below a table that Asher posted, showing the reduced percentage of appeals that have been allowed over a period when I would have hoped to see exactly the opposite.

One trend that is apparent from the appeal decisions is in the context of enforcement appeals, where a longer period is frequently being given for compliance because of difficulties residents may have finding alternative accommodation due to the pandemic, although not always – in a recent decision in Ealing the inspector held that the nature of the “cramped and sub-standard living conditions“ was such as to outweigh that consideration (10 Torrington Gardens, 17 November 2020).

An appeal in relation to a proposed single dwelling in the countryside in Horsham District was dismissed in part because the inspector accepted the concerns of a nearby dog kennel business that the construction noise could affect the health of their dogs and indirectly affect the business economically if it had to close during this period, especially when considered in conjunction with the downturn in business they had generally suffered due to the coronavirus pandemic (The Mount, Ifield, Crawley, 27 July 2020).

An appeal in relation to five proposed flats in Cambridge was dismissed with the inspector noting that, although the appellant claimed that there was a need to promote economic growth as a result of the Covid -19 pandemic, this did not justify allowing harmful development (Mere Way, Cambridge, 1 October 2020).

An appeal to allow changes to proposed dwelling layouts in Eastbourne was allowed. Whilst the nationally described space standard was breached for a three bedroom home, the inspector placed weight on the need for a ”home office”, noting Covid-19 – a separate room was recognised as useful also for homework and hobbies, noting the “open plan” living room layout at present (land south of Langney shopping centre, 10 September 2020).

An appeal in relation to three proposed self build dwellings in Breckland was dismissed, with the inspector noting that there was little substantive evidence to demonstrate the longer term effects of Covid 19 on housing delivery rates or that that these developments would not be deliverable over the five year period , rather than just delayed (land to the north east of Fakenham Road, Beetley, 9 September 2020).

An appeal in relation to the proposed redevelopment as 27 residential apartments of the Flapper and Firkin music venue in Birmingham was dismissed. Whilst the venue had closed in January 2020 and therefore the minister’s July 2020 statement on preventing the loss of such venues was not directly relevant, the inspector concluded that the community harm arising from the loss of the venue outweighed the social and economic effects of the new homes (Flapper and Firkin, Kingston Row, Birmingham, 2 September 2020).

An appeal in relation to 216 proposed new homes in Wokingham district was rejected, with the inspector not accepting the appellant’s case that the assumed housing supply should be reduced by almost 500 dwellings due to the effects of the pandemic. He considered that the pandemic’s impact would be short-term and that five-year supply would recover (land east of Finchampstead Road, Wokingham, 25 August 2020).

An appeal in relation to a proposed staff car park in connection with a hotel in North Somerset was dismissed, the inspector considering that approval would not significantly contribute towards the economic recovery of the hotel business (Doubletree by Hilton Bristol South Cadbury House, 17 August 2020).

There are earlier appeal examples as well, but with equivalent themes and none that I could see were allowed with any weight given to Covid-19 considerations.

A proper analysis of the patterns emerging would be useful. For instance, how should the effects of the pandemic be taken into account in assessing whether there is five years’ supply of housing land? Is any Government advice required as to particular issues, such as live-work accommodation? Is any temporary advice required on enforcement issues, and on deadlines for compliance? Should Government for instance encourage a liberalised approach in relation to particular types of proposals, with shorter implementation deadlines for permissions approved in that way?

Simon Ricketts, 21 November 2020

Personal views, et cetera

Thank you to my Town colleague Lida Nguyen for the appeal searches, carried out via Compass Online.

Minister Knows Best

Why at the moment do ministers conclude so often that they have to reject their inspectors’ recommendations in relation to planning proposals and major infrastructure projects?

Something is clearly wrong when there can be a hugely expensive, time consuming inquiry or examination, followed by a lengthy, considered and reasoned report, only for the decision letter to arrive at a different balance. Is it the fault of inspectors? Has Government not communicated its up to date policy priorities? Are these decisions driven by political convenience? The problem is that we don’t get to find out – the minister’s decision is inevitably as bland as bland, with differences cloaked by “legal cover” explanations as to the different weight applied to particular considerations. Is it any wonder that the losing party so frequently then embarks on a legal challenge?

Anglia Square, Norwich

Yesterday (13 November 2020), Robert Jenrick issued his decision letter refusing, against his inspector’s recommendations, a called in application for planning permission in relation to the proposed development at Anglia Square, Norwich of “up to 1250 dwellings, hotel, ground floor retail and commercial floorspace, cinema, multi-storey car parks, place of worship and associated works to the highway and public realm areas”. The proposal included a 20 storey tower. Inspector David Prentis had held an inquiry over 15 days in January and February 202, providing his 206 page report to the Secretary of State on 6 June 2020. Russell Harris QC appeared for the applicant (Weston Homes and others), Tim Corner QC appeared for Norwich City Council and Historic England (represented by Guy Williams), Save Britain’s Heritage (represented by Matthew Dale-Harris), the Norwich Society and the Norwich Cycling Campaign were all rule 6 parties.

Photo from Save Britain’s Heritage website (credit: Dan Glimmer)

Why was the inspector’s recommendation not accepted?

“The Secretary of State has carefully considered the Inspector’s assessment at IR468- 469 of the building typologies proposed, and their height. While he recognises that there has been an effort to place the taller buildings within the site rather than on the edges, the Secretary of State considers that the bulk and massing of the built form proposed is not sympathetic to its context. In particular, he is concerned that the frontage to St Crispins Road would include 8, 10 and 12 storey buildings, and he finds, like the Inspector at IR607, that Block F, which would have frontages to Pitt Street and St Crispins Road, would appear strikingly different and unfamiliar, to an extent that would cause harm. The Secretary of State also concurs with the advice of Design South East as quoted in the evidence of Historic England (IR269 and IR474) that:

“with blocks of over 10 storeys, it is only in comparison with the tower that these could be considered low rise, and in the context of the wider city they are very prominent. These blocks are not just tall, but also very deep and wide, creating monoliths that are out of scale with the fine grain of the surrounding historic urban fabric”

He “finds that the tower would be of an excessive size in relation to its context, and does not demonstrate the exceptional quality required by Policy DM3(a).

The Secretary of State “disagrees with the Inspector on the scale of the heritage benefits of the proposal set out in IR542, specifically the second bullet given his concerns over the design of the proposal. Taking account of the wider heritage impacts of the scheme as set out in paragraphs 27 to 59 of this letter, the Secretary of State disagrees with the Inspector and finds that, while the benefits of the scheme are sufficient to outweigh the less than substantial harm to the listed buildings identified at IR536-540, when considered individually, they do not do so when considered collectively, given the range and number of heritage assets affected, and given the increased harm found in comparison to the Inspector. He therefore finds, like the Inspector, that the proposals would conflict with policy DM9. He has also found conflict with elements of policies JCS1 which states that heritage assets, and the wider historic environment will be conserved and enhanced through the protection of their settings, and conflict with elements of policy DM1 which states that development proposals will be expected to protect and enhance the physical, environmental and heritage assets of the city.

“Overall the Secretary of State concludes that the benefits of the scheme are not sufficient to outbalance the identified ‘less than substantial’ harm to the significance of the designated heritage assets identified at IR536-537 and in paragraphs 27-59 above. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”

Bob Weston of Weston Homes has indicated that the decision will be challenged (Norwich Anglia Square: Robert Jenrick ‘sided with Nimby brigade’, BBC website, 12 November 2020).

A303 Stonehenge DCO

Yesterday (12 November 2020) Grant Shapps overturned the examining authority’s recommendation and confirmed the A3030 Stonehenge DCO. The examining authority comprised no fewer than five inspectors (Wendy McKay, Alan Novitzky, David Richards, Ken Taylor and Edwin Maund).

Why was their recommendation rejected?

“ It is the ExA’s opinion that when assessed in accordance with NPSNN, the Development’s effects on the OUV of the WHS, and the significance of heritage assets through development within their settings taken as a whole would lead to substantial harm [ER 5.7.333]. However, the Secretary of State notes the ExA also accepts that its conclusions in relation to cultural heritage, landscape and visual impact issues and the other harms identified, are ultimately matters of planning judgment on which there have been differing and informed opinions and evidence submitted to the examination [ER 7.5.26]. The Secretary of State notes the ExA’s view on the level of harm being substantial is not supported by the positions of the Applicant, Wiltshire Council, the National Trust, the English Heritage Trust, DCMS and Historic England. These stakeholders place greater weight on the benefits to the WHS from the removal of the existing A303 road compared to any consequential harmful effects elsewhere in the WHS. Indeed, the indications are that they consider there would or could be scope for a net benefit overall to the WHS [ER 5.7.54, ER 5.7.55, ER 5.7.62, ER 5.7.70, ER 5.7.72 and ER 5.7.83].”

“Ultimately, the Secretary of State prefers Historic England’s view on this matter for the reasons given [ER 5.7.62 – 5.7.69] and considers it is appropriate to give weight to its judgment as the Government’s statutory advisor on the historic environment, including world heritage. The Secretary of State is satisfied therefore that the harm on spatial, visual relations and settings is less than substantial and should be weighed against the public benefits of the Development in the planning balance.”

See also his overall conclusions at paragraphs 80 to 86.

Again, as with Anglia Square, the position of Historic England proved influential, as was that of the National Trust and other bodies.

A legal challenge from campaigners appears inevitable.

Manston Airport

On 9 July 2020 Grant Shapps also overturned the examining authority’s recommendation and confirmed the Manston Airport DCO. The examining authority comprised four inspectors (Kelvin MacDonald, Martin Broderick, Jonathan Hockley and Jonathan Manning).

The proposals would permit the reopening and development of Manston Airport, enabling it to become a dedicated air freight facility handling at least 10,000 air cargo movements each year, with the offer of some passenger, executive travel, and aircraft engineering services.

Why was the examining authority’s recommendation to reject the proposals not accepted?

“For the reasons above, the Secretary of State disagrees with the ExA’s recommendation to refuse development consent. As set out above in paragraphs 20 and 21, the Secretary of State considers there is a clear case of need for the Development and this should be given substantial weight. He considers the Development would support the government’s policy objective to make the UK one of the best-connected countries in the world and for the aviation sector to make a significant contribution to economic growth of the UK and comply with the Government’s aviation policy that airports should make the best use of their existing capacity and runways, subject to environmental issues being addressed. Substantial weight is given by the Secretary of State to the conclusion that the Development would be in accordance with such policies and that granting development consent for the Development would serve to implement such policy. The Secretary of State also considers that there are significant economic and socio-economic benefits which would flow from the Development, which should also be given substantial weight.

The Secretary of State accepts that there is the potential for short term congestion and delays on the local road system caused by the Development to occur before appropriate mitigation is delivered; however, he considers that the residual cumulative impacts would not be severe and gives limited weight to these effects. He concludes that the need and public benefits that would result from the Development clearly outweigh the heritage harm and the harm that may be caused to the tourist industry in Ramsgate. The Secretary of State also concludes that with the restrictions imposed by him in the DCO and also through the UUs only limited weight should be given to noise and vibration adverse effects.

For the reasons set out in paragraphs 24-26 above, the Secretary of State is content that climate change is a matter that should be afforded moderate weight against the Development in the planning balance. He does not agree with the ExA that operational matters weigh moderately against the grant of development consent being given for the Development.

The Secretary of State is content that the impacts of the Development in terms of air quality [ER 8.2.28 – 8.2.43]; biodiversity [ER 8.2.44 – 8.2.62]; ground conditions [ER 8.2.76 – 8.2.82]; landscape, design and visual impact [ER 8.2.104 – 8.2.120]; and water resources [ER 8.2.219 – 8.2.227] are of neutral weight in the decision as to whether to make the DCO.

When all the above factors are weighed against each other either individually or in- combination, the Secretary of State is satisfied that the benefits outweigh any adverse impacts of the Development.”

An objector, Jenny Dawes, has challenged the decision. Her crowdfunding page gives some basic information.

The claim was filed on 20 August and was granted permission by the High Court on about 14 October to proceed to a full hearing. It doesn’t seem that a hearing date has yet been set. The barristers are Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas.

Norfolk Vanguard offshore windfarm

On 1 July 2020 Alok Sharma overturned the examining authority’s recommendation and confirmed the Norfolk Vanguard offshore windfarm DCO. The examining authority comprised four inspectors (Karen Ridge (Lead Member), Caroline Jones, Gavin Jones and Grahame Kean).

Why was their recommendation to reject the proposals not accepted?

“The Secretary of State notes that the ExA determined that consent should not be granted for the proposed Development because of potential impacts on habitats and species afforded protection under the Habitats Directive. In determining that it was not possible on the basis of the information available to it to rule out an AEoI on two sites protected by the Directive – the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area – the ExA concluded that the proposed Development would not be in accordance with NPS EN- 1 and could not therefore be granted consent.

However, in other respects, the ExA concluded that, while there would be impacts arising from the proposed Development across a range of issues (including on local landscape and traffic and transport), those impacts were not of such significance or would be mitigated to such a degree as to be not significant as to outweigh the substantial benefits that would derive from the development of a very large, low carbon, infrastructure project. The ExA notes that, if one set aside the conclusion on Habitats-related issues, then in all other matters, the proposed Development would be in accordance with the National Policy Statements and national policy objectives. This conclusion was subject to some clarification on specific points, including mitigation proposals.

As is set out elsewhere in this submission, in light of the ExA’s Report to the Secretary of State, the Secretary of State consulted a range of parties including the Applicant about the Habitats-related issues and other relevant matters that had been raised in the ExA’s Report. On Habitats, further information on potential bird impacts such that the Secretary of State is now able to conclude that, on balance, there would be no Adverse Impact on Integrity for the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area.

The Secretary of State notes that there were a range of views about the potential impacts of the Development with strong concerns expressed about the impacts on, among other things, the landscape around the substation, traffic and transport impacts and potential contamination effects at the site of the F-16 plane crash. However, he has had regard to the ExA’s consideration of these matters and to the mitigation measures that would be put in place to minimise those impacts wherever possible. The Secretary of State considers that findings in the ExA’s Report and the conclusions of the HRA together with the strong endorsement of offshore wind electricity generation in NPS EN-1 and NPS EN-3 mean that, on balance, the benefits of the proposed Development outweigh its adverse impacts. He, therefore, concludes that development consent should be granted in respect of the Development.”

Lang J granted permission on 2 July 2020 in relation to a crowdfunded legal challenge brought by an objector, Ray Pearce.

Drax Power Station Re-Powering Project

These DCO overturn instances are of course not new. On 9 October 2019 Alok Sharma overturned the examining authority’s recommendation and confirmed the Drax Power Station Re-Powering Project DCO. A challenge to the decision failed: ClientEarth v Secretary of State (Holgate J, 22 May 2020).

Nor of course are such instances new when it comes to planning appeals and call-ins.

Might I suggest that a review be carried out as to why they are occurring so often?

Finally, given the infrastructure theme to much of this post, please can I recommend my Town partner Duncan Field’s recent paper in the Journal of Urban Regeneration and Renewal, Overcoming obstacles to planning major infrastructure projects.

Simon Ricketts, 14 November 2020

Personal views, et cetera

Multiple planning permissions, antique planning permissions: Hillside

There is so much that planning legislation does not address and where principles have had to evolve from case law. One of those is the extent to which development pursuant to one planning permission can be carried out without jeopardising the ability of a developer to carry out work pursuant to another planning permission which was granted over the same area of land.

The principle established in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 has been essential to the modern planning system. In that case, Lord Widgery CJ set down the test as follows:


“One looks first of all to see the full scope of that which is being done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”

The case turned on a simple situation of two planning permissions that were granted for the construction of a bungalow on the same plot of land, one positioning the bungalow at the centre of the site and the other in one corner.

The principle is now routinely applied to much more complex situations, for instance where outline planning permission has been granted for a large multi-phase development, a “drop-in” planning permission is often secured for a different form of development on part of the site and permission secured under section 73 for any necessary amendments to conditions attached to the main permission so as to ensure that if development is carried on part of the site under the drop-in permission rather than the main permission, there will be no breach of any conditions attached to the main permission. Any other procedural route, for instance requiring planning permission to be applied for afresh for the whole outline planning permission area would be unnecessarily unwieldy.

The same principle is also relevant when reliance is sought on what I might term “antique” planning permissions, planning permissions which may be hugely valuable if still determined to be live, because they were granted in a more liberal policy climate and when development was not so constrained in terms of planning conditions and obligations. Whilst Parliament legislated for a comprehensive review and modernising of old minerals permissions, it has not done this in relation to permissions for other forms of development.

Last week, in Hillside Parks Limited v Snowdonia National Park Authority (Court of Appeal, 3 November 2020), in a judgment by Singh LJ, the Court of Appeal considered the question of whether one such antique planning permission was still “live”, a 1967 permission for the development of 401 dwellings on 29 acres of land at Balkan Hill, Aberdyfi, granted by Merioneth County Council, as was. The development, governed by a master plan which has been repeatedly varied, has still only been partly built out. In 1987 there was litigation as to whether the permission could still be relied upon and Drake J held that it could. As summarised by the Court of Appeal in the latest proceedings, Drake J held as follows:

“First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission.”

Snowdonia National Park Authority became the local planning authority in 1996.

“Departures from the Master Plan were granted by the Authority on:


(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.


(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.


(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.


(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.


(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.


(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.


(7) 20 May 2009 for the erection of 3 pairs of dwellings.


(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.”

The facts are frustratingly unclear from the judgment, as to the precise nature of these permissions, and indeed the extent to which they were in fact variations of the masterplan approved by way of the 1967 permission.

“On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.”

Hillside sought a declaration from the High Court that the authority was bound by the ruling of Drake J back in 1987, that the permission could still be relied upon and that the “planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development”. The claim was rejected by HHJ Keyser QC at first instance. He held that the 1987 order was not wrongly made but that “the development which has occurred since 1987 now renders 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 of Appeal did not consider that there had been anything inappropriate about the way that the judge had dealt with Drake J’s ruling and did not consider that the authority should be prevented from raising the “Pilkington” issue even though its predecessor had not raised it before Drake J. In weighing up whether to allow that issue to be raised, the court recognised that “there are undoubtedly important private interests, including the commercial interests of the Appellant. However, there are also important public interests at stake, including the public interest in not permitting development which would be inappropriate in a National Park.

Singh LJ’s next comments are of interest, and perhaps of some concern, if they are to be interpreted in any way as casting doubt on effectiveness of the modern “drop-in permission plus section 73 permission” process I referred to earlier:

“Furthermore, I would accept the submission made by Mr Lewis on behalf of the Respondent that there have been significant legal developments since the decision of Drake J in 1987. In particular, the decision of the House of Lords in Sage has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required.

In Sage the main opinion was given by Lord Hobhouse of Woodborough, although there was also a concurring opinion by Lord Hope of Craighead. Mr Green emphasised that, on the facts of that case, what Lord Hobhouse was considering in terms was a planning permission for “a single operation”: see e.g. para. 23. It was in that context, submits Mr Green, that the House of Lords held that a planning permission must be implemented “fully” and that a “holistic approach” must be taken. Mr Lewis observed that, at para. 6, Lord Hope used the word “totality of the operations” (plural rather than singular). In my view, the important point of principle which arises cannot be determined according to semantic differences between the different opinions in the House of Lords. I would accept Mr Lewis’s fundamental submission that the decision in Sage made it clearer than it had previously been that a planning permission should be construed “holistically.”

As a matter of principle, I would endorse the approach taken by Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin), in particular at paras. 19-20, where Sage was cited. Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:


“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.”

At the hearing before us there was an interesting debate about a point which ultimately this Court does not need to resolve on this appeal. That issue is whether, in the circumstances envisaged by Hickinbottom J, all the development which has already taken place, apparently in accordance with the first grant of permission, is rendered unlawful simply by virtue of the fact that subsequent operations take place pursuant to another permission which is inconsistent with the first. The phrase used by Hickinbottom J (“subsequent development”) might suggest that it is only the later development which would fall to be regarded as unlawful. Mr Lewis contended that as a matter of principle it must be the whole of the development, including any development that has already taken place. That would have the consequence that there could be enforcement action, and potentially criminal liability, in relation to the development that has already taken place, even though it was at the time apparently in accordance with a valid planning permission. Mr Lewis submitted that in such circumstances it would be unlikely that enforcement action would be taken in practice. Even if that is right, that would mean that whether or not enforcement action is taken would be a matter of discretion rather than law. These are potentially important questions on which we did not receive full argument because they do not need to be decided on this appeal. I would therefore prefer to express no view on them.”

This concept of the planning permission having to be built out as a whole surely needs to be unpacked a little bit more. Sage v Secretary of State (House of Lords, 10 April 2003) was a case about the part-construction of a dwelling. Care needs to be taken in extending any concept that the development needs to be “implemented in full” and is to be regarded as authorising a “single operation” to modern multi-phase permissions. There is no specific requirement that such a development, once started, must be completed – if the local planning authority has a concern in that respect it can serve a completion notice (although of course that procedure is not without its difficulties).

Singh LJ rejects Hillside’s reliance on another old case, F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, as part of its argument that development pursuant to the 1967 permission on parts of the site was not inconsistent with development on other parts of the site pursuant to other permissions, but was he right to? As summarised by Singh LJ:

“Lucas was decided by Winn J in 1964. In that case, in 1952, planning permission was granted to develop a plot of land by the erection of 28 houses in a cul-de-sac layout. Later the plaintiffs applied for permission to develop the same plot by building six detached houses, each on a plot fronting the main road. Permission for this later development was granted in 1957 and two houses were built in accordance with it. Later, however, the plaintiffs proposed to proceed in reliance on the earlier permission from 1952 by building the cul-de-sac and the 14 houses on the southern side of it. That land was still undeveloped at that time. The plaintiffs sought a declaration that the earlier permission was still effective and entitled them to carry out the proposed development on that part of the site where it could still take place. Winn J concluded that the 1952 permission was not to be regarded in law as a permission to develop the plot as a whole but as a permission for any of the development comprised within it. Accordingly, it did authorise the “partial” development proposed by the plaintiffs.”

Surely this was exactly the effect of Hillside’s permission, and certainly how I would categorise modern planning permissions for multi-phase development. As long as conditions are not breached and there is adequate assessment of the cumulative effects, what is the problem?

Singh LJ says this about Lucas:

“…Lucas was a highly exceptional case. It has never been approved by an appellate court. It has never been followed or applied, so far as counsel have been able to show us, by any court since. Furthermore, it was described as being an exceptional case by Lord Widgery CJ (a judge with immense experience in the field of planning law) in Pilkington. Both this Court and the House of Lords have had the opportunity in the many decades since Lucas to consider whether it should be regarded as setting out a general principle or not.

In my view, it would not be appropriate for this Court now to overrule Lucas. In order to do so we would have to be satisfied that it was wrongly decided on its particular facts. It is not possible to be satisfied of that, not least because we do not have the advantage of seeing the precise terms of the planning permission which was granted in that case. It suffices to say that the case should be regarded as having been decided on its own facts.

As Hickinbottom J observed in the case of Singh, at para. 25, it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is 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 may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented.”

Lawyers: what do you make of all this? Further thought is required but I am concerned that this judgment may have introduced further uncertainty into our system, which is complicated enough thank you!

Simon Ricketts, 7 November 2020

Personal views, et cetera

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