Comment
Dennis (the Hillside Menace): the implications of R (Dennis) v LB Southwark
Following our series of comments on the Hillside case in 2021 and 2022 [1] the recent High Court case of R (Dennis) v LB Southwark [2024] EWHC 57 (Admin)[2] has caused a further stir in the industry through the Court’s exploration of what it means for a planning permission to be truly considered ‘severable’. In this briefing note we consider what this ruling may mean for future planning applications. The Rt. Hon. Lord Banner K.C. also offers his thoughts on this latest judgment and the recent Government consultation on an “Accelerated planning system”.
This latest judgment has implications for anyone grappling with the Hillside caselaw and particularly for those trying to ‘Hillside-proof’ a planning permission by making phases within it ‘severable’ (whether proactively in preparing a planning application, or retrospectively to a permission which has already been granted).
Summary of Case Law
Hillside
In November 2020, judgment was handed down in a Court of Appeal case between Hillside Parks Limited and Snowdonia National Park Authority[3]. The judgment was concerned with “drop in” permissions and the extent to which one planning permission can be implemented on part of a site without prejudicing the ability of a developer to continue implementing another planning permission covering the wider site.
The initial 2020 Court of Appeal judgment suggested it was ‘conceivable’ that a permission could allow for development to take place in a series of independent acts, each of which was separately permitted; however, the judgment caused a stir in suggesting that it 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”.
In essence, the Court of Appeal judgment indicated that a planning permission should be seen and implemented in full as an integrated whole, and that the implementation of a subsequent ‘drop-in’ permission could render any wider planning permission un-implementable in its entirety.
The Court of Appeal judgment was challenged in the Supreme Court and a subsequent judgment handed down in November 2022. The Supreme Court judgment provided helpful clarity on certain matters from the original Court of Appeal judgment, including in respect of:
- Physical impossibility – the Supreme Court judgment reaffirmed the well-established ‘Pilkington principle’, confirming that a planning permission cannot be implemented (or continue to be implemented) if, as a consequence of alteration to the land (including by virtue of a subsequent drop-in permission), it becomes physically impossible to carry out the original permission. This applies to the site as a whole and not just the part of the site in question.
- Material departures – the Supreme Court noted that any departure from the original permission must be “material in the context of the scheme as a whole” and “what is and is not material is plainly a matter of fact and degree” in order for the Pilkington principle to apply.
- Severability – the judgment confirmed that “in the absence of clear express provisions making it severable” a planning permission should not be construed as authorising further development if compliance with that permission becomes physically impossible and “it is a question of interpretation” whether a permission authorises a number of independent acts of development or whether it is to be construed as a single scheme which cannot be disaggregated.
Dennis – what makes a planning permission severable?
In January 2024, judgment was handed down from the High Court in the separate case of R (Dennis) v LB Southwark[4]. This case considered the implications of the Hillside Supreme Court judgment on a major phased outline planning permission.
The case itself concerned whether the insertion of the word ‘severable’ into the description of development for a large outline scheme was ‘non-material’ and could therefore be done under Section 96A of the Town and Country Planning Act (as had occurred in this case). The question for the Court was essentially whether the permission was already severable (meaning the proposed amendment to the description would be non-material) or whether the permission was not severable (in which case the amendment would be material).
To answer this question, the Court delved further into what makes a planning permission ‘severable’, which is helpful in the context of applying Hillside.
In considering what makes a planning permission severable, the court rejected the suggestion that the inclusion of a phasing plan and maximum development parameters indicated that the planning permission was severable. Whilst the Court accepted that the phasing plan in question did involve ‘spatially discreet’ phases, this in itself did not indicate the grant of a severed permission. The judgment also suggests that the planning permission and submission should be looked at as a whole and there should be a clear indication “expressed unequivocally” that a ‘severed’ planning permission has been granted.
Paragraph 118 of the judgment cites the lack of reference / consideration within the Committee Report of the merits of individual phases - and the lack of the same in supporting documents including the Environmental Statement (ES)- as contributing towards the conclusion that the original outline planning permission was not severable in this case. This suggests that for a planning permission to be considered ‘severable’ the application itself needs to give due consideration and clear assessment (including within any ES) to individual and discrete developments acts within the overall scheme (e.g. the individual blocks of a major masterplan development).
Implications
The Dennis case has made the position in respect of demonstrating severability significantly more challenging. Based on the discussions within the case, it is likely that the following would be required in order to demonstrate that a planning permission can be regarded as severable:
- “Express” indication as part of the planning permission itself (i.e. on the decision notice) that the permission relates to a series of independent acts, either through the description of development, within the conditions and / or through the use of informatives; and
- clear indication within the planning application (and any officer’s report) that the proposals have been considered and determined as a series of independent acts of development which can be severed. This might include specific reference and assessment to each development act within the Environmental Statement, supporting assessments, and /or the Planning Statement, as well as the officer’s report.
Of course, the need to demonstrate that a planning permission is ‘severable’ to mitigate Hillside risk is only necessary should a party wish to depart from a planning permission in a ‘material manner’, and this departure makes it ‘physically impossible’ for the original planning permission to continue to be implemented.
Creating flexible planning permissions which allow for developments to change and respond to market conditions over time is still, therefore, a valuable tool in helping to avoid the risk of Hillside.
There are also still alternative mechanisms available to amend a planning permission without the need for a ‘drop-in’ permission, depending on the nature of any amendments/revisions and the extent to which these are ‘material’ (or ‘non-substantial’). These options include the existing mechanisms under Section 96A and Section 73, and the future mechanism under Section 73B, being introduced under the Levelling up and Regeneration Act 2023 (details of which are still awaited).
Whilst the Dennis case confirms that it is not possible to retrospectively amend a permission under Section 96A to make it severable if it were not in the first place, this is not to say that this could not be done under Section 73 or 73B. Subject to suitable new supporting assessment work being undertaken and any new permission being granted under these Sections expressly indicating that the permission is severable, this could potentially be an avenue for anyone with an existing permission where Hillside might apply (assuming the changes would not fall foul of Finney and other relevant limitation on Section 73). Effectively, the use of the Section 96A ‘quick fix' amendments to descriptions of development and other application documentation has been found to be problematic in this case – with wider reaching consequences.
In some scenarios a new planning permission covering the whole site may indeed be necessary, but each case will be different, and the level of risk and the specific circumstances of the case should be considered to ensure a robust but proportionate approach.
An ‘Accelerated planning system’?
In a timely update as part of a wider consultation on an “Accelerated planning system” announced as part of yesterday's Budget, views are being sought on proposals to implement Section 73B of the Levelling Up and Regeneration Act for applications to vary planning permissions, and the treatment of overlapping permissions.
In short, there is no golden bullet proposed by this consultation. Indeed, the consultation document notes that:
“92. We recognise, however, there could be circumstances where the section 73B route may not be appropriate – for instance, if the change could be considered to be substantially different or there are wider financial and legal relationships between the master developer, landowners and investors which makes the preparation of a section 73B application difficult. We would welcome views about the extent the section 73B route could be used to grant permission for changes for outline planning permission in practice and what are constraints.
93. If the section 73B route cannot address all the circumstances, we are keen to explore whether there are alternative options to facilitate the operation of overlapping permissions, especially when there are outline permissions for largescale development where phases are clearly identified. One option could be to create a framework through a new general development order. This would deal with overlapping permissions in certain prescribed circumstances. The Secretary of State has broad powers under section 59 of the Town and Country Planning Act to provide for the granting of planning permission through an order, including classes of development. This may be for a specific development or for a class of development. Views would be welcome on whether the focus of such an approach should be on outline permissions for largescale phased development or whether there are any other categories of development which could benefit from an alternative approach."
We would encourage clients affected by the implications of these cases to respond to this important consultation before the deadline. In the meantime, it will be necessary to consider the implications of these judgments on our schemes on an individual case by case basis.
The Rt. Hon. Lord Banner K.C. comments:
“From my perspective as counsel in the Supreme Court in Hillside, I have no hesitation in endorsing Tim and Rosie’s analysis. The announcement this week of a consultation on the prospective bringing into force of s.73B of the Levelling Up and Regeneration Act could not come a day sooner. Whilst the proposals set out in the consultation seem eminently sensible at first blush, a key issue for the planning and development sector to consider will be whether s.73B, whilst useful, goes far enough in dealing with the issues that multi-stage development projects now face in the light of recent case-law including Finney, Hillside, and Dennis.”
If you would like to discuss the implications of Hillside or Dennis, please get in touch with Rosie Cotterill or Tim Burden.
7 March 2024
[1] https://www.turley.co.uk/comment/hillside-parks-v-snowdonia-national-park-practical-implications and https://www.turley.co.uk/comment/hillside-supreme-court-practical-implications-implementing-multiple-planning-permissions
[2] https://www.bailii.org/ew/cases/EWHC/Admin/2024/57.html
[3] Hillside Parks Limited v Snowdonia Nat ional Park Authority [2020] EWCA Civ 1440
[4] R (Dennis) v LB Southwark [2024] EWHC 57 (Admin)