23 November 2020

There are occasions where a development site is subject to more than one consent. The practical reality of development, especially on large-scale projects, is that circumstances change over time. This can lead to multiple consents being granted on the same site and confusion over which apply. Courts have scrutinised circumstances where there are overlapping consents like this and established principles to determine which consents are valid.

A case recently heard by the Court of Appeal considered just this issue. In the High Court, in Hillside Parks Ltd v Snowdonia National Park Authority [2019] EWHC 2587 (QB), the developer of a large housing estate (Hillside) was seeking to rely on a permission which was granted in 1967 to complete development on a site in Aberdyfi.

The High Court found in favour of the respondent Authority (Snowdonia National Park Authority) who sought to prevent Hillside from completing development under the 1967 permission.

In coming to its decision, the court considered the principles set out in previous cases and examined, in the case of the Hillside site, whether the events which had occurred since the 1967 permission now:

  • preclude the lawful completion of the development; or
  • represent ‘a number of separate acts of development’?

The Facts: 1967 to 1987

Hillside acquired a site with the benefit of planning permission granted in 1967 for 401 dwellings.

In 1987, the year before they acquired the land, the 1967 permission was subject to proceedings in the High Court.

Following the 1967 permission being granted, Hillside’s predecessor had discovered that part of the site was an old quarry. This created issues for the development and so additional permissions were sought and granted (eight in total) for a number of dwellings which were built as substantial variations to the masterplan attached to the 1967 permission. In effect the eight additional permissions overlapped the 1967 permission.

In 1985 the local planning authority then asserted that the 1967 permission was not valid and had not been implemented. However, the court in the 1987 case declared the 1967 planning permission was lawfully granted, and had been properly implemented. The eight additional permissions granted between 1967 and 1987 were considered to be ‘authorised modifications of the previously approved development’.

The Facts: 1987 onwards

There was a gap in works on the site until 1996 when another eight additional permissions were granted and subsequently implemented. These also overlapped with the 1967 masterplan.

At the start of the 2019 proceedings, the 1967 permission had been supplemented by a total of 16 additional permissions for dwellings at various locations within the larger site. Only 41 dwellings had been completed.

Which legal principles applied? Separate acts of development

Hillside argued that Lucas & Sons Ltd v Dorking and Horley Rural District Council ([1964] 17 P&RC 111) applied to their site. The rationale in Lucas was that some permissions, on their true construction, authorise a number of ‘separate acts of development’ as opposed to one single development scheme.

In Lucas, the separate acts of development pertained to the construction of dwellinghouses (each one being a separate act). The judge ruled that the construction of these was lawful. It was done so in accordance with the planned development as granted despite the fact that other dwellinghouses, constructed under subsequent permissions on the same plot, contradicted the original permission.

The judge did not accept the principles in Lucas applied to the Aberdyfi site and cautioned that they would only ever apply in very limited circumstances.

Overlapping consents can preclude development

The courts have looked at the problem of overlapping consents in several scenarios, one of which considered development on a one acre site (in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527). The site was first granted permission for one dwellinghouse at the centre of the site.The site was then granted a second permission for one dwellinghouse built in the corner of the site. The building works begun in the centre of the site – thus implementing the first permission. Then a dwellinghouse was built in the corner of the site under the second permission. Even though the first permission was implemented, development under it could not then be lawfully completed as it would result in two dwellinghouses on the site which was not within the permissions.

Conclusions of the High Court

The court distinguished between the pre-1987 additional permissions and those granted later on, stating that the earlier permissions resulted in only minor alterations to the scheme and as such could be considered ‘authorised modifications’.

Conversely, the court found that the development which had taken place since 1996 under the eight additional permissions was materially inconsistent with the master plan of the 1967 permission.  For example, an estate road had been built in a location which cut across a row of terraced houses included on the 1967 master plan. The court established that it would be impossible to complete the development fully in accordance with the 1967 permission.  Therefore, no further development could be carried out under the 1967 permission. 

Court of Appeal

Hillside appealed against the High Court decision. The Appeal was heard in the Court of Appeal on 7 and 8 October 2020. In a judgment by LJ Singh, the Court of Appeal found that the High Court judge was entitled to reach the conclusions he did. 

In his judgment, LJ Singh notes that planning permissions need to be implemented in full and a holistic approach should be taken. The position is therefore that, if a development for which permission has been granted cannot be completed because of the impact of another permission, that subsequent development as a whole will be unlawful. LJ Singh specifically refers to modern planning permissions for the development of large estates such as housing estates. He comments that 'Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully "pick and choose" different parts of the development to be implemented.'  This comment may give rise to questions about how developers proceed when seeking amendments to a scheme once the initial permission has been implemented.

Key takeaways

This is a cautionary message to developers, especially on development sites with a convoluted planning history. Ascertaining which consents are valid and which can be completed is important in determining land values.

Clarity can be achieved through the use of outline permissions followed by the detail contained in reserved matters approvals; requesting non-material amendments to a permission; or by applying to vary a condition on a permission. The general rule that you must implement a planning permission as it was originally granted (or risk losing its benefit) still stands, and only in limited circumstances can this be circumvented.

Burges Salmon’s Planning and Compulsory Purchase team advise on implementing and varying planning permissions as well as helping the planning history of development sites. For further information, please contact Gary Soloman or Alex Minhinick.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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