In the wake of the Supreme Court judgement in Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30 we look at the effect on “drop in” planning permissions:
On the 2nd November 2022, the UK Supreme Court (UKSC) handed down the eagerly awaited judgement in Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30 (Hillside v Snowdonia). The result of which has been to clarify the position where there have been successive planning permissions (known as “drop in” planning permissions) to the original and the effect that these subsequent permissions have on physically implementing the original.
Such applications are an everyday occurrence and so clarity has been anxiously awaited by developers everywhere. For developments with an overarching scheme “drop in” planning permissions are most commonly used with phased large-scale developments, for example where developers are continuing to build out Phases 1 and 2 under the original planning permission but apply for an additional planning permission for further phases. This is also commonplace where multiple developers are building out the original planning permission. Equally, smaller developers will utilise “drop ins” in instances where extra land has been acquired which neighbours the original site. A “drop in” application will be used to acquire permission for those extra dwellings and associated infrastructure.
Whilst each additional permission is a separate application, it is related to the original and so relies on the original findings for the site. Local Authorities have been happy to review and provide a decisions on such “drop ins” without the need for the the full set of documentation to be provided again.
Hillside v Snowdonia called into question the validity of subsequent planning permissions and the point at which the original application is no longer valid and whether it is valid as a whole or in part subject to those further planning permissions.
Back to the beginning…
In 1967, the local authority of the time, Merioneth County Council, granted planning permission for 401 dwellings and associated infrastructure for a site in Snowdonia National Park. This is known as “the 1967 Permission”.
Between 1967 and 1973 several additional planning permissions were granted by the same Local Authority, each altering the development originally permitted by the 1967 Permission.
In 1987, the site owners at this time, Landmaster Investments Ltd, brought proceedings in the High Court against the new Local Authority, Gwynedd County Council. The 1987 proceedings called into question the validity of the 1967 Permission and whether this had lapsed. The High Court confirmed that the 1967 Permission could still lawfully be completed at any time in the future.
Between 1996 and 2011 several more additional planning permissions for the site were granted, this time by Snowdonia National Park Authority.
By 2017, the site now owned by Hillside Parks Ltd, was marginally built out with only 41 of the original 401 permitted dwellings constructed in accordance with the 1967 Permission. Of the 41, some had been constructed on land proposed for roads and vice versa, pursuant to the subsequent planning permissions, making it physically impossible for the whole development to be built out fully in accordance with the 1967 Permission. As a result, the Local Authority told the developer to cease all works because implementation of the 1967 Permission had been rendered impossible. Hillside Parks Ltd brought proceedings against the Local Authority challenging this action.
The High Court and Court of Appeal agreed that the 1967 Permission could not be implemented further, or in full, due to the “drop in” permissions and works carried out since 1987.
An appeal was made to the UKSC on the question of whether any further development may be lawfully carried out under the 1967 Permission as the additional planning permissions had only altered parts of the same.
The appeal brought by Hillside Parks Ltd was unanimously dismissed by the UKSC.
The judgement handed down confirmed that the 1967 Permission had been varied by the copious “drop in” permissions in addition to those that were stand alone planning permissions. As a result, the works carried out under the variations physically prevented the further fulfilment of the 1967 Permission in parts.
With this being said, the 1967 Permission was an integrated multi-unit development and was not worded in such a way that it could be severable into separate parts, i.e each part was not dedicated to a phase, for example, and so the full 401 dwellings and associated infrastructure were to be carried out together not separated out.
Therefore, a similar planning permission for a development as a whole, which does not specifically separate out each section or phase of the development, cannot be relied upon and all development should cease if part of the development becomes physically impossible to carry out.
Lord Sales and Lord Leggatt (giving the leading judgment) stated: “where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1) Town and Country Planning Act 1990”.
What should Developers bear in mind going forward?
- “Drop-ins” remain an option provided that the framework of the existing consent is appropriately structured and worded, i.e. it refers to the previous planning permission and as a variation. Without careful structuring and wording they pose a risk.
- Without the aforementioned wording and structuring, the permission will be regarded as a standalone permission and a full application is to be submitted.
- The plans submitted with a full application “have particular significance”.
- Unless there is express wording to the contrary, consents authorising multi-unit development are not to be construed to permit a series of separate and severable permissions for the construction of individual elements.
- If permission is granted for a multi-unit development:
- that permission should authorise each stage of that development for so long as it remains physically possible for the development as a whole to be constructed; and
- there is nothing in statute requiring the scheme to be completed in full and failure to do so does not render what has been built unlawful.
- It is only where there are “material departures” that a developer would be unable to rely on an existing permission. Minor changes to house angle, how close the fences are to the road etc will not render the permission useless.
- That “mere incompatibility” with the terms of an earlier consent (for example a breach of planning condition) is not fatal to reliance on that earlier permission.
- The failure or inability to complete a project for which planning permission has been granted does not make development carried out pursuant to the permission unlawful.
There are a number of ways to avoid or reduce the risk presented by these type of situations and our Commercial Property experts will be happy to assist you further.
If you would like to find out more about how we can support you please contact our Commercial Property Team.