Land owners unable to implement 53-year-old planning permission

Jamie Lockerbie of Pinsent Masons, the law firm behind Out-Law, was commenting after the Court of Appeal in London ruled that further development could not be undertaken at a site in Wales because it could not be carried out in a way which ran true to the original approved development for which planning permission had been granted in 1967, and would therefore be unlawful.

The court reached that view in the case of Hillside Parks Ltd v Snowdonia National Park Authority, rejecting an appeal by land owner Hillside against an earlier High Court judgment in favour of the planning authority, Snowdonia.

At the heart of the Court of Appeal's ruling was its consideration of earlier cases where further development on sites benefiting from existing planning permission had been the subject of dispute.

In the so-called 'Lucas' case in 1966 it was ruled that a planning permission "permitted each and every item comprised in the application" and that it was therefore not a necessary condition of the lawfulness of the permitted development for it to be completed in whole. The Court of Appeal in the Hillside case said that it would not overrule the judgment in the Lucas case but nor would it apply the principles established in that case to the case before it.

The Court of Appeal also reflected on more recent case law, from the cases of 'Sage' in 2003 and 'Singh' in 2010, and considered how they should be interpreted when assessing the lawfulness of a development where there are two overlapping planning permissions and it is physically impossible to carry out both on the same piece of land.

The Court of Appeal in the Hillisde case commented in passing that it is "conceivable" that "a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it", it was its view that 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".

It said: "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."

Lockerbie said the ruling is significant for developers working on large multi-phase schemes where changes to part of the scheme are proposed to be secured by what is known as an overlapping or 'drop-in' planning permission. He said developers could be troubled by the court's comments.

"If the judgment is taken to the extreme it could render the approach of using 'drop-in permissions' all but redundant," Lockerbie said. "Surely this cannot be what was intended. If it were the practical consequences would be that it would force a developer who was looking to make small, albeit material, changes to one particular area of a large scheme, say for thousands of homes, to re-apply for the whole scheme. This would result in an inordinate amount of wasted time, effort and cost. Such waste and delay is precisely what the government is seeking to eradicate from the planning system."

Lockerbie said the planning system in England is flexible enough to address the issues highlighted by the Court of Appeal and ensure the lawfulness of subsequent permissions for development on sites benefiting from prior planning permission. He said he hopes the issues raised will be clarified to support what commonly happens in terms of 'drop-in permissions' should an appeal be made to the Supreme Court.

"Given the Court of Appeal did not find that Lucas was wrongly decided it is our position that this ruling does not prevent the use of 'drop-in applications' and that these remain a lawful and effective tool to make changes to a development scheme, provided that an appropriate structure is applied," Lockerbie said.

"Where an applicant is looking to ‘drop in’ a new planning application into a wider scheme, care will need to be taken to explain that the latter application does not prejudice, but can and is intended to be delivered alongside the existing constructed or approved development. A developer looking to implement a 'drop-in' strategy should ensure that the drop-in permission appropriately interlinks with the existing permission so that the two can be developed out harmoniously. This may require amendment to certain of the approved plans in the existing permission, part of which is being displaced by the drop-in," he said.