Hillside - Is amending your scheme now an up hill battle

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.

The facts

• The case concerned a 1967 planning permission for a 41 unit housing development in the Snowdonia National Park. There was a masterplan showing the proposed location of each house and the layout of the road system for the estate.
• Only part of the development was built out.
• Later planning permissions were granted which were incompatible with the 1967 permission: houses were built where some of the roads were supposed to be and vice versa.
• The lower courts held that it would be unlawful to carry out the rest of the works permitted by the 1967 permission because the works carried out pursuant to the later permissions were incompatible with the works authorised by the 1967 permission. In other words, the later works had brought an end to the 1967 scheme.
• The Supreme Court agreed.

What this means for your schemes

Helpful points of clarification include:

• There is no obligation to complete a whole scheme. A development that has only been partly built out is still lawful.
• Carrying out works under one planning permission ("Works A") and then moving to another planning permission to complete the scheme in either the same or varied form (such as a S.73 permission) does not make Works A unlawful.
• A planning permission may be drafted so that it is expressly authorising a series of independent development phases. This will be important in any amendment of scheme strategy.

Death of drop-ins?

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 [2022] UKSC 30