When you can’t build both - clashing permissions
It isn’t easy, is it. Our first week back at work in 2021. Our brains painfully creaking back into gear. It can be hard to reignite 2020’s tumultuous love affair with the twists and turns of planning law and policy. Don’t I know it. So let’s take this new year one day at a time. Why not grab a tea, switch off Twitter, and turn our brains away from the news of a world falling apart for just 2 minutes to enjoy a gentle canter through some 100% authentic and reform-free #planoraks basics.
Are you sitting comfortably? Then, as Salt-N-Pepa might’ve put it 30 years ago (are you feeling old, yet?), let’s talk about inconsistency. Baby.
The planning system is, our judges like to say, a “creature of statute”. A “comprehensive code imposed in the public interest”.
But is it? Is it really? Because you often find them saying something like that and then almost immediately having to invent a new concept which is nowhere to be seen in the statute books. How do you define a planning unit? How long do you have to let a use lie vacant before it’s abandoned? When does a change of use actually begin? Do the terms of a grant of permission determine what uses are allowed, or is it that a job for planning conditions? Time after time, on these most fiddly of brain-teasers, statutes don’t tell us the answer. Which means the courts have to.
Which takes us to this week’s problem. Some of us golden oldies used to call it the “Pilkington” problem. But nowadays the kids are all talking about “Hillside” - Hillside Parks v Snowdonia National Park Authority [2020] EWCA Civ 1440. For a great summary of the case, see Matthew White’s piece here.
Here’s your starter for 10: what happens when 2 inconsistent planning permissions apply to the same land? (And here’s a hint: don’t bother Googling the Town and Country Planning Act. Because it doesn’t say).
So. 3 quick headlines on the law:
Lots of planning permissions can coexist for the development of the same land, even though they’re mutually inconsistent. All things being equal, a developer can choose which to implement.
Buuuttttt…. if there are two inconsistent permissions, albeit you could pick either, you can’t have both. If implementing one makes another impossible to implement, then you risk losing both of them. The court described the Pilkington principle like this:
'If permission were granted for the erection of a dwelling house on a site showing one acre of land as that to be occupied with the dwelling house, and subsequently permission were applied for and granted for a dwelling house on a different part of the same acre which was again shown as the area to be occupied with the dwelling house, it would, in my judgment, be impossible to construe these two permissions so as to permit the erection of two dwelling houses on the same acre of land. The owner of the land has permission to build on either of the sites, but wherever he places his house it must be occupied with the whole acre.'
And it isn’t just about starting developments. It’s about finishing them too. In Hillside, the Court of Appeal confirmed that reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out "fully in accordance with any final permission under which it is done". Which means that means that if Permission A cannot be completed because of the impact of operations under Permission B, then subsequent development as a whole will be unlawful.
Simple, right? Well not quite. And that’s partly because of a question the Hillside case does not decide. Let’s say development is ticking along happily under Permission A. Then along comes Permission B - which covers some of the same land but is inconsistent with Permission A. Right. So. Permission B is implemented - on how we do that, have a look here. But what then? “Subsequent development as a whole” is unlawful, so says the Court of Appeal. But does that mean all the earlier work under Permission A is unlawful too? Is Permission A lost forever? Can enforcement action now be taken against what’s been done so far? Even though the work under Permission A was perfectly lawful at the time it was done? Can Permission A never be completed? On these questions, the Court of Appeal decided… not to decide. The issues live to be fought over another day. And - particularly for complicated multi-phase schemes - they could be absolutely critical.
Alright. That’s enough head-scratching for week 1 of January. Do we feel back in business now? Feel free to log back onto Twitter or the social media portal of your choice. And in more seriousness, I hope you and yours are faring well in these troubling days. Stay well, #planoraks. And keep on planning.
