Hillside v Snowdonia
In 1967, the LPA granted planning permission for the development of 401 houses on a site in Wales in accordance with a Master Plan. Progress on building out the estate was glacial.
By 1985, only 19 houses had been built. None of them were in accordance with the Master Plan but all had individual permissions.
In 1987 a court gave a declaration that the 1967 permission had been implemented on time, that its sole condition had been satisfied and that the Master Plan was still valid and capable of implementation.
Since 1987, another 22 houses have been built. Again, some had individual permissions (some described as variations to the 1967 permission, others not). Others were built without any permission. None followed the Master Plan. Some were built where the Master Plan required a key road, preventing that road from being built.
In 2017, the NPA told the developer, Hillside, that, as it was now impossible to implement the Master Plan, all works must stop. Hillside sought a High Court declaration. It was refused. The judge held that it was now physically impossible to complete the development in accordance with the 1967 permission. The Court of Appeal agreed, and Hillside brought the case to the Supreme Court.
It was accepted that anything done before 1987 was effectively a variation of the 1967 permission (due to the 1987 declaration). The question for the Supreme Court was whether the post-1987 permissions were good and whether any further development could take place.
After running through the law on interpretation of permissions and the ability of councils to vary permissions, the court asked itself what to do about inconsistent permissions.
In Pilkington v SSE (a 1973 case), a developer built one house with permission then discovered an earlier permission for another house in a different part of the land; he wanted to build the second one too. The court held that a developer could make any number of conflicting applications. But if one permission was implemented, the developer needed to show that a second permission was not inconsistent with the first if he wanted to build out the second permission. Implementation of the house rendered the earlier permission incapable of implementation because the position of the house was described on the earlier plans as agricultural land and it was now a house.
The NPA said that Pilkington should be followed. Development after 1987 rendered the 1967 permission impossible to implement further.
Hillside said that Pilkington was based on abandonment; Mr Pilkington had abandoned the earlier permission by building the later one. Hillside said it had not abandoned its rights under the 1967 permission.
The Supreme Court gave this short shrift. There is simply no principle in planning law that a permission can be abandoned. The Pilkington case was based on the impossibility of implementing the earlier permission, not its abandonment. If it was physically impossible to carry out the work in accordance with the earlier permission, the permission could not cover the proposed work. Here, the new houses meant that the road could not be built, and the Master Plan permission could not be completed.
Hillside turned to its second argument. It said that the 1967 permission authorised any subset of the 400 houses it permitted, not just the 400 as a whole. That subset could be built out even if other subsets could not.
The Supreme Court had more interest in this one. Permission for a multi-unit scheme is for an integrated whole; it is not severable into parts. Yet, permission for already-built units in a multi-unit scheme was not lost if the developer did not complete the whole scheme. How should these apparently competing points be reconciled?
The court concluded that these were, in fact, two different propositions. Where something physically prevented the whole scheme from completion in accordance with its terms, further development was not possible under the terms of the original permission; the 1967 permission was not divisible into parts. This applied across the whole site. The physical impossibility of completing works on one part of the site rendered unauthorised any further development across the whole site. This did not render the existing development unlawful; it only prevented further development.
Hillside’s third argument was that the post-1987 permissions were variations on the 1967 permission. The 1967 permission, as varied, remained capable of further implementation.
The Supreme Court said no. LPAs have very limited powers to make changes to an existing planning permission. If a developer wants to make a material change to a large scheme granted a single permission, that needs a new permission. Even if the proposed change affects only one area of the site, still the new permission is required for the whole.
Properly construed, the post 1987 permissions granted permission only for their individual development; they did not change the 1967 permission for the overall site. If, as a result, that 1967 permission could no longer be built out, so be it.
Comment
Clearly this decision is of real consequence for developers of large multi-unit schemes who now need to be very careful to ensure that any changes they make to the scheme are covered by a permission and to ensure that the permission makes clear that the overall scheme is being altered.
From an enforcement point of view, the interest is perhaps in the treatment given to Sage v SSETR [2003] UKHL 22. Sage has been seen as authority for the proposition that, while implementation of a permission may start with the first brick, if what is eventually built out is materially different from the permission, then the whole development is unlawful. Applied to the Hillside case, that would seem to render unlawful everything built so far.
This aspect was effectively rejected by the Supreme Court. It was, said the court, “obiter” (not crucial to the analysis) in Sage because there was no permission at all in Sage. It had little application to multi-unit cases. Failure or inability to complete a permitted project did not render existing development unlawful but further work is not authorised once the development becomes physically impossible to complete in accordance with the permission; if Sage said otherwise, Sage was wrong.
Sage, said the court, remains good law for the proposition that substantial completion does not take place until construction of the whole building contemplated by the developer. But that is an immunity point; it does not go to lawfulness of what was built.
The problem with this approach for enforcement can be seen with, for instance, a permission for a single storey extension which is built as two storeys. The Hillside approach would seem to suggest that the ground floor was an implementation of the permission and lawful until the second storey was commenced and made it impossible to put the roof on the ground floor permission scheme. Is the implication that the breach of planning control is building a second storey (rather than the whole extension) and that a notice could only require removal of the second storey? That would be an odd result.
Hopefully the effect will be limited. In many cases, development is a single operation so the concept of “existing” and “further” development does not arise. If the development which takes place is not the development which was permitted, it doesn’t need Sage to know that the development is in breach of planning control. Where development is more piecemeal (eg multiple “householder” extensions followed by conversion to HMO), this decision will cause real enforcement headaches.
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