Month: November 2020

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