Hillside - Is amending your scheme now an up hill battle
10 November 2022
10 November 2022
Many developments go through numerous changes as the scheme progresses, resulting in a number of different planning permissions for the same site. Overlapping planning permissions and "drop in" permissions, that vary a smaller part of a bigger development scheme, are particularly common on large, complex sites, but the law has not always been clear on how such permissions can be used to ensure a lawful development. The Supreme Court has set the record straight on a number of key legal principles, but the decision has raised other questions on how to amend large multi unit developments.
Helpful points of clarification include:
It is important to note that this judgment does not expressly deal with drop in permissions. The case centred on whether a 50+ year old permission could be resurrected and developed out despite a series of other incompatible works under different permissions. However, the court commented that a new appropriately framed planning permission which covers the whole site and includes the necessary amendments to the original scheme would be the safest way to make the required changes. This has caused much discussion in the industry, with some commentators being of the view that this brings an end to drop in permissions for material changes to a scheme.
Our view is that drop in permissions may still be used in certain circumstances, but this will need careful consideration and management to ensure consistency with the root permission. It is certainly not a 'one size fits all' approach. Carrying out works under a drop in permission that are materially incompatible with the root permission risks the unfortunate and unintended consequence of rendering the root planning permission redundant, preventing you from carrying out further development.
Helpfully, the court was clear that "mere incompatibility" between two permissions (e.g. a condition on the original which would be breached by the later permission) does not of itself make the root permission redundant, but the local planning authority could still take enforcement action against the breach. This is an important consideration when disposing of part of a development. Contractual protection will be needed to ensure that new permissions on the disposed site are secured in such a way that they do not impact on the lawfulness of what has been built out to date or the ability to develop the remainder of the land.
We are already considering amendment strategies for some of our clients for both existing and future schemes. If you would like advice on overlapping planning permissions and/or planning strategy, please get in touch.
Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.