The Supreme Court has recently rejected the appeal made by Hillside Parks Ltd against the previous Court of Appeal ruling, which found against allowing further development under its original planning permission on its site in Snowdonia National Park. The implications of this ruling may be significant for large-scale, multi-phased developments such as residential development and town centre regeneration schemes.
Overview of the case
The specifics of the case are complex and covered multiple planning permissions granted since 1967, with the developer making the case that subsequent planning permissions be considered as ‘variations’ to the original permission, and seeking to confirm it could still lawfully deliver undeveloped elements of its original planning permission.
The case itself was dismissed, with the Supreme Court deciding that the planning permission did not comprise independent acts of development that could be implemented separately. Were this the case, it would have preserved some of the original permission in areas where there was no physical incompatibility.
This is not to say that this is the case for all planning permissions, and the judgment helpfully reaffirms that it may still be possible to formulate a planning permission as a series of independent acts, but this will need to be identified explicitly on the face of that planning permission.
The main takeaways from the judgement
The judgement confirms that a later, full planning permission cannot now generally be considered a ‘variation’ of an earlier planning permission.
The judgement reaffirms the ‘Pilkington Principle’ whereby a development that has already been built under “Permission A” the ability to implement a second permission on part of the same defined site is dependent on whether it is physically possible to carry out that second permission, given what has been delivered under the first permission.
The Court of Appeal confirmed that where a scheme has been lawfully implemented, it does not in fact become unlawful of itself due to the subsequent implementation of any subsequent permission.
The difficulties in seeking a new permission in one part of the site and the resultant loss of the benefit of the original permission, and then having to apply for a fresh planning permission for the remaining development on other parts of the site, will be a concern to developers.
Subsequent proposals on the same site will need to demonstrably fit within the confines of that original permission, when taken as a whole.
It is likely that developers should consider the use of hybrid consents for multi-phased schemes, with further flexible phases introduced within the outline element to allow for any future changes as the development progresses.
The ruling further reinforces the complexity of the English planning system. As planning consultants, we are keen to stay abreast of planning case law updates to ensure that we can provide our clients with up-to-date and informed advice on planning matters.
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