Comment
Hillside Parks v Snowdonia National Park: The practical implications
A recent Court of Appeal case, handed down in November 2020, Hillside Parks Limited v Snowdonia National Park Authority [2020] EWCA Civ 1440 (“Hillside”) has drawn much attention within the development industry over recent weeks.
The full judgment can be found here.
Hillside considered the extent to which one planning permission can be implemented on part of a site without prejudicing the ability of a developer to carry out work pursuant to another planning permission covering the wider site.
This question is not new in the planning industry. Hillside reconsiders issues covered by a number of other cases that follow the ‘Pilkington principle’ established in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527(“Pilkington“). Pilkington is a long-standing principle which establishes that two overlapping permissions can be implemented on the same site so long as they aren’t contradictory.
So why has Hillside caused such a stir?
The answer lies in paragraph 90. The Court acknowledged that it was ‘conceivable’ for a permission to allow for development to take place in a series of independent acts, each of which was separately permitted. However, and significantly, the Court observed, ‘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’ and ‘I doubt very much in those circumstances whether a developer could lawfully ‘pick and choose’ different parts of the development to be implemented’.
This, and the wider judgment, has been interpreted by some as an indication that a planning permission must be delivered in full as an integrated whole, and that the implementation of a ‘drop-in’ permission could potentially render a wider planning permission un-implementable in its entirety.
However it is important to remember that this judgment relates to a 50+ year old planning permission (granted in 1967), with a unique set of circumstances, and a complicated and unclear planning history. The facts of the case can therefore be distinguished from many modern-day planning permissions, particularly where it is clear what has been assessed through the application, the flexibility which may have been sought (particularly for outline planning permissions), and the way in which the site is intended to be delivered (for example by way of an approved phasing plan).
‘Hillside’ may therefore not be applicable in all scenarios, but it still acts as an important reminder that the Pilkington principle is very much still a live issue, and it is as important as ever for developers to be mindful of the potential legal implications and complexities associated with overlapping planning permissions. This is a good time therefore for developers to consider whether there is anything which needs to be done in relation to extant planning permissions, or emerging applications, to reduce potential risk of falling foul to Pilkington and Hillside.
In this article we seek to set out the practical ramifications of this recent judgment and possible approaches to limit its impact.
Implications of the judgment
This judgment tells us that in some cases it may not be possible to implement a new planning permission which had been overlain onto a wider consent without interfering with the ability to deliver the remainder of the original permission. But we must stress the importance of approaching this on a case-by-case basis. Hillside could indeed have significant implications for some schemes, but it may be immaterial in other circumstances.
For many multi-phased developments which are built out over a long period of time, be they large scale strategic residential developments or complicated town centre schemes, it is somewhat common place for such schemes to evolve over time to reflect market demand or changes in circumstances. Many such planning permissions are therefore specifically designed to enable phased delivery, and flexibility to allow things to change and evolve over time is often already built in.
The first key step is therefore to determine whether your situation can be easily distinguished from Hillside or not, and this will largely come down to the compatibility of your overlapping planning permissions. An initial judgement can be made by assessing whether the new scheme could come forward without compromising the substantive nature of the original planning permission.
Mechanisms to manage risk
Having reviewed the compatibility of your planning permissions (whether extant or emerging), should you decide you are in a ‘Hillside’ (or a ‘Pilkington’) situation, there are potential avenues which can be explored to ameliorate or limit risk in such circumstances.
Examples of mechanisms which can reduce risk where overlapping permissions exist (or are being considered), are set out below. Of course the below options will not be appropriate in all circumstances and should be discussed with a planning lawyer alongside your planning consultant, as well as the Local Planning Authority.
Apply for a Section 96A ‘non-material amendment’ and submit reserved matters pursuant to the new planning permission or a separate full planning permission
An amendment to the original planning permission could be made under Section 96A to align it with any subsequent planning permissions which do not accord with it. The new full or reserved matters application can then be considered as being in accordance with the established planning permission. Any proposed change would need to be considered ‘non-material’ which, whilst not impossible, is improbable in most scenarios where a standalone application has already been deemed necessary due to conflict with the original planning permission.
Apply for a Section 73 ‘minor material amendment’ and submit reserved matters pursuant to the new planning permission or a separate full planning permission
If an application under Section 96A is not possible, it may be possible to seek to amend the earlier permission under Section 73, to ensure it remains compliant with the emerging scheme. Again, there are limits to what can be changed under Section 73, and this option will therefore only be possible where the proposed changes are ‘minor material’ and can be achieved via a variation of condition.
Apply for a Certificate of Lawful Existing Use or Development (‘CLEUD’) or a Certificate of Lawful of Proposed Use or Development (‘CLOPUD’)
If it is not possible to amend your existing permission(s), one way of minimising risk is to apply for certificates of lawfulness in relation to existing and/or future development made under the extant permission, setting out why the permission can still be built out substantially in accordance with its terms. If this is to be relied on as part of a planning strategy, it is important to ensure that the Local Planning Authority is aware of the intention and supportive of the approach.
Seek clarity in committee reports
If you are seeking planning permission on a site with a wider extant permission, it would help to ask the LPA to add commentary into their committee report confirming that the latter scheme does not obstruct the implementation of the earlier permission. This would remove any later ambiguity if this matter is subsequently raised, either by the council or third parties.
Construct your planning permission with care
If you are preparing a new planning application, which you foresee may fall foul of the Pilkington principle in the future, a carefully constructed planning permission can greatly assist in reducing risks. We are well practiced in ensuring permissions are constructed to reflect the specific delivery requirements of each individual client or case.
Moving forward
An application to appeal the Hillside judgment in the Supreme Court has now been lodged. If the application to appeal is successful, there may well be further clarification on the wider ramifications of Hillside in due course.
Until that time, Hillside is a stark reminder that any developer seeking to rely on multiple planning permissions for the same site should take a cautious approach, and this article demonstrates that there are mechanisms available depending on the individual circumstances in each case to manage potential risks.
If you would like to discuss the implications of Hillside further, please get in touch with Tim Burden or Rosie Cotterill.
28 January 2021