When you can’t build both #2 - the big point in *Hillside*
Welcome to Aberdyfi.
I tell you, friends. You have to move fast in this game. Planning law and policy. It’s no joke. My last post tried to work through some big problems in the planning reform agenda of Liz and Kwasi. [I wonder how it all turned out for those two, Ed.]. Well. That was blogging time well spent, wasn’t it. Things have now… how do we put this… moved on a bit. And indications are that those much-vaunted investment zones (“growth, growth, growth”) - which survived for under a month - are now more or less dead. Dead. Dead. Dead. Albeit officially that matter is still under review. Buuuut, the review doesn’t sound hopeful - “anything that might in any way undermine environmental protections is out." 😬. You know, it’s a good thing our planning departments are so well resourced, or you might be concerned about the enormous time, money and (it would appear, wasted) hours that were exerted by many, many authorities all over the country who submitted investment zone proposals to the Government. Ho hum.
U-turns to send your head into a spin. My post before that one was all about promises to ditch “Stalinist” housing targets which Liz and Kwasi decided to get rid of right before Michael Gove decided to keep them. 300,000 homes a year stays. OK. How will that number be distributed between different authorities? They’re not telling us. Not yet.
Are you keeping up? Are any of us?
In the chaos, local planning authorities continue to down tools on plan-making efforts across the land. Waiting for clarity in a reform agenda which has never come. Still waiting. Mr Gove has his work cut out for him. More from me on the new Government’s answers to this crisis if and when we’re told what the latest answers are going to be. I can hardly wait. As ever, when those announcements finally come, do look out for those tell-tale phrases - the watchwords of all recent announcements about planning reform: “in due course”, “over the coming months”, “in the early part of the new year”, “some time in the Spring”. Or, as King Lear put it a little more realistically, “never, never, never, never, never”.
In the meantime, can you spare 5 minutes for a little law? Just a little. It’s worth it. A quick refresher on… [drumroll]… the law on inconsistent planning permissions.
You’ve heard the buzz, by now. Haven’t you? Anyone who’s anyone has spent the last 48 hours poring over, talking through, and bravely trying to understand LinkedIn posts about… Hillside. Not just any hillside. No, we’re talking about the rolling hills of the Snowdonia National Park. God’s country. And, in particular, a very, very long-standing development proposal for several hundred houses on slopes over the Dyfi Estuary and the Irish Sea. For a lightning-round refresher, have a look here: my first post of 2021. Which commented on the headlines from this Hillside case when it had reached the Court of Appeal.
But the world turns. Things move on. Prime Ministers come and they go (only the lettuce remains). And now we have the Hillside judgment from the Supreme Court: here.
If you want some detail, can I recommend Simon Ricketts’ characteristically excellent summary here. Beyond that, it won’t take much Googling to uncover the many, many articles about this case which have already been written by (in particular) planning solicitors firms up and down the land. If you’re really mega keen, you can hear from the two lead counsel in the case. Gwion Lewis who acted for the successful authority will be talking about the case here. Charlie Banner who acted for the developer has already talked about it here.
There’s all sorts to draw out of this judgment. It’s a biggie. It’s going to be one of those cases planning lawyers talk about for donkey’s years. So there’s no need for you to digest every nook and cranny this very minute. Even if we wanted to (and I suspect we don’t) we can’t: I’ve only offered you 5 minutes and just a little law. So here it is - 3 quick points, including which I think is the biggest (and most welcome) point of clarity in the law that the Hillside case gives us:
To cut to the chase: the nub of the judgment is familiar - affirming and restating the “Pilkington” principle which the Court summarised as the point that “a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission)”. So far, nothing new. Albeit now we know that for this Pilkington principle to be engaged, the physical alteration has to be material. Immaterial differences from the original permission don’t engage the principle. Some helpful pragmatism there.
There’s more. One thing which is getting lots of folks talking is what this judgment may mean for so called “drop-in” applications. “So called” because drop-in applications aren’t a creature of planning law or policy. They’re a creature of practice, i.e. a strategy to vary sections/phases of larger multi-phase developments by applying for a new planning permission in respect of only part of a wider site, whilst continuing to develop the rest of the site under the original permission. No doubt about it - this kind of strategy (where it still remains possible) is going to take considerable cunning and care after Hillside: see in particular paragraphs 71, 73 and 74 of the judgment. It’s likely to need express consideration of parcelling up the original permission up to make bits of it “severable”: see paragraph 68. What any of this actually means in practice will now have to be worked through. And it won’t be easy. Because the headline from the Supreme Court is that - at least generally, albeit not always - the proper course is going to require a new application (either a full one, or a s.73 application - on which more here) which covers the entire site: see paragraph 74. Not just the “drop-in” bit. All of it. The mega cost, delay and inconvenience that comes with this course of action will only increase the clamour to simplify the law on the how we vary planning permissions.
But for my money, the really big (and useful) bit of clarity in the law which comes from Hillside lies in what the Supreme Court said about development that has already happened. Imagine a development is ticking along happily under Permission A. Then along comes Permission B - which covers the same land but is inconsistent with Permission A and would make Permission A physically impossible to complete. Next, Permission B is implemented - on how we do that, have a look here. But what then? If the permissions are physically incompatible in a material way, the ability to complete Permission A is lost under the Pilkington principle. But does that mean all the earlier work under Permission A now becomes unlawful too? 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? On these questions, the Court of Appeal decided… not to decide. But the Supreme Court has tidied this question up very neatly, and in the process they cleared up earlier caselaw which had led the Court of Appeal astray. In a nutshell:
“In summary, failure or inability to complete a project for which planning permission has been granted does not make development carried out pursuant to the permission unlawful. But (in the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible.”
Thank goodness for that. Because the consequence of the alternative approach (i.e. all parts of the existing development which were lawfully built at the time they were built subsequently becomes unlawful) would have been disastrous and unworkable - as the Supreme Court noted at paragraph 61. A victory for common sense. And, can you believe it, a reason to be almost cheerful about the planning system. A rare bird, these days.
So much for the planning system being (as the courts constantly remind us) a simple and self-contained statutory code. Arf arf. Simplicity. Where would be the fun in that.
I hope you enjoy these darkening evenings, #planoraks. I also hope you’ve not had as many site visits as I have this horrendous wintry week trawling through the mud, wind and rain. I don’t think my brolly’s ever going to recover. My walking shoes are parked next to the radiator. But it’s no good. Here’s hoping for a dry, crisp and even November. And, of course: start those nominations coming in - I don’t need to remind you, we’re only weeks away from the much-anticipated 🏆 2022 Planoraks 🏆 (for a refresher on last year’s victors, check this out). And what a year of contenders it’s been already. I nominate the lettuce. In the meantime, stay well, #planoraks. And of course, through it all: #keeponplanning.
