Tag: Hillside

Dennis

There was an interesting Hillside after-tremor this week by way of R (Dennis) v London Borough of Southwark (Holgate J, 17 January 2024) which may prove useful in giving more practical guidance as to the approach to drop-in applications in the context of modern multi-phase masterplan-style permissions.

(For a quick refresher on the Hillside judgment itself, see my 2 November 2022 blog post Running Down That Hillside)

In Dennis an objector challenged the decision by Southwark Council to grant a section 96A (non-material amendments) approval the effect of which was intended to make an outline planning permission for the phased redevelopment and regeneration of the Aylesbury Estate in south east London “severable” (within the meaning of the Hillside judgment) by the insertion of that word into the description of development authorised by the outline planning permission. The claimant contended that the amendment was “material” and therefore outside the scope of section 96A. Southwark Council and the developer, Notting Hill Genesis, submitted that the outline planning permission should be interpreted as “severable” in any event and that the amendment sought was just by way of caution. The amendment was made so as to pave the way for implementation of a drop-in permission for development within one of the phases, which would be inconsistent with what the outline planning permission had authorised. The drop-in application had been resolved to be approved subject to grant of the section 96A application.

There are already a few particular aspects as to the facts which need to be borne in mind before applying the judgment more broadly:

  • The approach to seeking to make a particular phase “severable”, in Hillside terms, from the rest of the permission was simply by way of introducing the word “severable” into the description of development!
  • The parties disagreed as to whether the permission was already to be construed as severable but agreed for the purposes of the litigation that if it was not already severable the amendment would be material and therefore fell outside of section 96A. The judge did not reach a ruling that changes to accommodate drop-in applications are necessarily material and of course that will be a matter for the planning judgment of the decision-maker in every case.
  • The amendment was by way of securing “severability” rather than adjusting the permission so that building it out would not be materially incompatible with what was to come forward by way of a drop-in application.

This is to be contrasted by many Hillside strategies that we see, where alongside submission of the drop-in application care is taken to amend the existing permission to the extent necessary to achieve material physical compatibility – often by way of section 96A because the local planning authority in its planning judgment determines those amendments not to be material. This after all makes sense and, whilst I might have some sympathy for objectors where the strategy is taken that was taken in Dennis, where there would be no control over what might come forward on the severed part of the permission, I don’t have any sympathy where it is perfectly clear what the changes are, by virtue of the drop-in application having been made, accompanied by full assessments of the acceptability of the proposal in the context of the wider consented development and where this is all reported to committee so that everyone is clear and has a full opportunity to make representations to the same extent as if the whole development had been the subject of a fresh application (the Supreme Court’s impractical suggestion in Hillside).

So what did we learn from Dennis, aside from the extent to which Hillside issues remain a menace for all concerned, and aside from being reminded, again, that the Government really should have grasped the nettle and legislated to address the problem in the way that many of us urged (we even provided draft clauses!) rather than sticking with introducing via LURA the very weak section 73B procedural option into the 1990 Act?

  • Hillside applies as much to outline planning permissions as to full permissions.
  • Care is needed as to the word “severable” used by the Supreme Court in Hillside. Simply inserting the bare term “severable” into a permission does not make it severable.
  • Phasing alone does not connote severability. Indeed, “if the inclusion of phasing provisions were to be sufficient to sever a planning permission, whether detailed or outline, that could have consequences which nobody involved in seeking or granting that permission would have envisaged, such as the application of the statutory time limits for the implementation of each separate permission. For example, if the outline permission in Percy Bilton had been treated by the court as severed, the statutory time limits for submitting reserved matters for approval would have applied to each of the resulting discrete permissions and so some of those consents would have become time-expired. That was the issue in the case. Practitioners will therefore need to consider carefully the possible consequences of seeking to argue that a single planning permission should be treated as severed.”

A final point to note is that this case arose not from a challenge to the approval of the drop-in application (quite right, see my 15 December 2023 blog post Permission Incompatibility Not Relevant For The Decision Maker – Court of Appeal In Fiske). The case arose from the attempt of the developer to ensure, by way of the section 96A application, that implementation of that drop-in permission would not lead to a risk that the existing planning permission could no longer be relied on. I would comment that it is of course open to the developer to seek again to amend the permission such that the proposals can proceed.

I noted the statement in Planning Resource from the Public Interest Law Centre, which represented Dennis:

“This is an important judgement for housing campaigners across the country, as large estate redevelopments often unfold from outline planning permissions over time – or ‘phased’ like this. This case scrutinises the method in which developers use ‘drop in’ applications to deviate from what was promised to residents.”

My response would be: What really has been achieved by the challenge? What further assessments will be needed and further opportunity for views to be expressed, as a result of this outcome, that could not have been made in the context of the drop-in application? I’m sceptical.

On a separate note, I was really pleased at the beginning of the week to participate in a joint Landmark Chambers and Town Legal event, looking at the implications of the revised NPPF, chaired by Hashi Mohamed and with other panellists Rupert Warren KC, Anjoli Foster, Meeta Kaur and Sam Stafford. If you missed it (we were hugely oversubscribed), Sam has now put it out online as a 50 Shades of Planning podcast. Listen via this link or on Apple. Spotify etc.

Simon Ricketts, 20 January 2024

Personal views, et cetera

Image courtesy of Wikipedia

Permission Incompatibility Not Relevant For Decision Maker – Court Of Appeal In Fiske

The Court of Appeal handed down somewhat of a Christmas present today for those of us frustrated with questions raised from time to time by local planning authorities as to whether “Hillside” issues may arise in relation to particular application strategies adopted by our clients. In his judgment today in R (Fiske) v Test Valley Borough Council (Court of Appeal, 15 December 2023) Lindblom LJ makes it clear that this is simply a question for the developer to deal with – it is “not the authority’s job”.

The conclusion is clear although the underlying facts of the judgment take some unpicking. The first elephant trap to avoid is that whilst the case is part of the same saga arising from a local resident’s efforts to thwart development for a proposed solar farm in Hampshire, this is not an appeal from the High Court’s ruling in R (Fiske) v Test Valley Borough Council (Morris J, 6 September 2023) –  the case that endorsed the now well understood legal position in relation to the scope of section 73 permissions, that the development approved must not depart from the description of development on the face of the parent planning permission and must not constitute a fundamental alteration to the development approved by the parent planning permission. The court held in that case that removal of a substation from the approved development (a revised form of substation having been approved within the site by way of a separate planning permission) could not be achieved by way of section 73 given both that this conflicted with the operative wording of the parent permission that referred to a substation and given that the planning committee was not made aware of the removal of the substation from the proposals. (Here is Town Legal’s Town Library summary of that ruling).

In today’s Court of Appeal ruling, the question before the court was as to whether that separate planning permission had been granted unlawfully, given that at the time it was granted the subsequently quashed section 73 permission (to amend the rest of the scheme to be consistent with that permission) had not yet been granted (Sincere congratulations if you are still following this). As encapsulated by Lindlom LJ at the beginning of his judgment:

“Did a local planning authority err in law when granting planning permission for a distribution network operator (“DNO”) substation to connect a proposed solar park to the national grid? In particular, did it fail to have regard to an “obviously material” consideration by not taking into account the incompatibility of that planning permission with the permission it had previously granted for the solar park itself? These questions arise in this case. They involve principles of law that are already well established.”

Lindblom LJ then sets out the relevant legal principles in relation to the nature of material considerations and as to the incompatibility of planning permissions (our old friends Pilkington, Pioneer Aggregates and Hillside).

He goes on to agree with the conclusions of HHJ Jarman KC at first instance: the incompatibility of planning permissions or the prospect of some future breach of planning control was not a material consideration to which the council was required to have regard under any provision of the statutory planning code.

“The fact that the differences between the two proposals were obvious when the challenged decision was taken does not mean that their incompatibility was an “obviously material” and thus mandatory material consideration in the council’s decision. That would be a misconception. The planning system does not preclude the possibility of a number of applications for planning permission being made and granted for different developments on the same site. It accepts the granting and co-existence of mutually incompatible permissions, one or more of which may prove incapable of lawful implementation, whether in whole or in part, unless the incompatibility can be defeated by a further grant of permission under section 70 of the 1990 Act, or section 73. This was a point strongly emphasised in Pilkington.

There is nothing in the judgment of Lord Sales and Lord Leggatt in Hillside Parks, nor in Lord Widgery’s in Pilkington, or elsewhere in the cases to which counsel referred, to support the proposition that the incompatibility between a previously granted planning permission and an application seeking permission for a different scheme is a mandatory material consideration in the decision being taken, either as a general rule or in the “special cases” to which Lord Widgery referred.”

“In the light of the relevant reasoning in Pilkington, recently confirmed in Hillside Parks, and the cases on mandatory material considerations, I do not accept that the fact of the 2017 permission being expressly “associated” with the application for the 2021 permission made the incompatibility between the two permissions an “obviously material” consideration. Such incompatibility did not nullify or prevent the implementation of either the 2017 permission or the 2021 permission. It did not negate the principle of a solar park development on the site, which the 2017 permission had established. Nor did it go to the intrinsic planning merits of the substation proposal that the committee was now considering.”

“I see no force in the submission that the possibility of Woodington Solar acting in breach of planning control was itself an “obviously material” consideration. If the incompatibility of the two planning permissions was not an “obviously material” consideration, the future actions of a developer with the benefit of those two permissions cannot be seen as a matter on which the council needed to speculate. This was a question for Woodington Solar as developer. It did not bear on the planning merits of the proposal in hand.”

“For a large development such as this to require changes to be made to it in the course of design and construction is not unusual. It often happens. When it does, the developer may be expected to make such changes through the normal planning process. If he has the benefit of two or more planning permissions incompatible with each other, or potentially so, there may be lawful steps he can take to overcome that incompatibility and proceed with the development he wants to build. Sometimes this will not be so. In that case the incompatibility will remain, and the lawful implementation of one permission or the other, or both of them, will not be possible. But the local planning authority is not legally compelled to anticipate how the developer might later choose to deal with such inconsistency, or to assume that he will resort to unlawful means of doing so. That is not the authority’s job.”

Hear, hear.

Just waiting now from my NPPF present from DLUHC, although I suspect it may be very similar to what we all received this time last year…

Simon Ricketts, 15 December 2023

Personal views, et cetera

Photo courtesy of Neenu Vimalkumar via Unsplash

It’s Planning Law Month In The Supreme Court!

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 [1964] 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