The UK Supreme Court, that is. The US Supreme Court has gone back at least 50, maybe 55, years as we all know.
I’m ignoring as too painful for this blog post:
- those rulings, which had their gestation partly in the process by which the judiciary is appointed in the US and partly in that country’s Delphic and out of date written constitution
- the current uncertainties at the heart of UK politics, which must be giving rise to the question as to whether this country should have a written constitution.
I’m also not yet making any predictions about what the changes within DLUHC ministerial team mean for the planning system reforms that are currently underway.
However let’s just say that Where Did Our LURB Go? is pretty likely to be a future blog post title.
Whilst all this has been swirling around, two cases are before the UK Supreme Court which raise fascinating planning law questions, both of them having their root in what is, in the context of our relatively youthful postwar planning system, ancient and well-known case law.
On 4 July 2022 the court (Lord Reed, Lord Briggs, Lord Sales, Lord Leggatt and Lady Rose) heard Hillside Parks Limited v Snowdonia National Park Authority.
I was very pleased to be part of the Hillside Parks team, behind Charlie Banner QC, Robin Green & Matt Finn & lead solicitor David Harries (Aaron & Partners). Before being appointed, I wrote a 7 November 2020 blog post Multiple Planning Permissions, Antique Planning Permissions: Hillside which set out my concerns with the Court of Appeal’s ruling.
There is a brief summary of the issues before the court and relevant facts on the Supreme Court website and that page also includes links to recordings of the day’s proceedings, featuring some lively questioning of Charlie and (appearing for the park authority) of Gwion Lewis QC by the Supreme Court justices.
At the heart of the arguments was the question of the proper application of Pilkington v Secretary of State for the Environment (1973), where the Court of Appeal had held that where there were two incompatible permissions, the developer could not implement the earlier development when the later had rendered it no longer capable of implementation in the permitted terms. What is the position where the later permissions are for changes to one part of a wider development approved in the original planning permission? Zack Simons has done a good #planoraks blog post on the subject (of course): When you can’t build both – clashing permissions (8 January 2021).
How long until judgment? Your guess is as good as mine. The Supreme Court website says this:
“As a very broad indication, judgments tend to follow between three to nine months after the conclusion of the appeal hearing, although in some cases it may be earlier than that.”
On 12 July 2022 a similarly constituted court (Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose) will hear DB Symmetry Limited v Swindon Borough Council. The summary on the Supreme Court website sets out the issue as follows:
“Whether the principle enunciated by the Court of Appeal in Hall & Co Ltd v Shoreham by Sea Urban DC  1 WLR 240, that a planning condition could not lawfully require the developer to dedicate land for public purposes without the payment of compensation, is correct in law.
Proper interpreted in light of the answer to the first issue, what is the legal effect of the relevant planning condition.”
There is some background and commentary on the Court of Appeal’s judgment in my 17 October 2020 blog post Do Your Conditions Have Symmetry In Mind?
It is going to be useful to have an up to date articulation by the Supreme Court of the proper approach to both of these sets of issues: overlapping permissions and also what can be secured by condition. Indeed the rulings will have implications for the Levelling-up and Regeneration Bill: respectively (1) does clause 98 go far enough in providing a new procedure for amending permissions and (2) if the role of section 106 agreements is to be much diminished under the new infrastructure levy system, how much of the heavy lifting can lawfully done by way of imposition of planning conditions?
In the meantime, there is plenty to listen to at least:
- My Town Legal colleagues Meeta Kaur, Victoria McKeegan and Nikita Sellers have embarked upon a new podcast, Planning Law (With Chickens), which is very very good. There is a bumper first episode, with special guest Stephanie Hall, available via eg Apple and Spotify.
- Sam Stafford kindly invited me onto his 50 Shades of Planning podcast to talk about the LURB with Catriona Riddell, Jennie Baker and Tony Burton. The episode will be released shortly.
- As previously mentioned, our next Planning Law Unplanned discussion on Clubhouse will be at 6 pm on 19 July: “LURB: who will have the power?” Do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views.
Simon Ricketts, 9 July 2022
Personal views, et cetera