Geldards Represents Snowdonia National Park In Court Appeal

The Court of Appeal has dismissed an appeal against the decision of the High Court in Hillside Parks Limited v Snowdonia National Park Authority [2020] EWCA Civ 1440 which considered the question of whether a planning permission for 401 houses in Aberdyfi, granted and implemented in 1967, was capable of further implementation in light of various subsequent planning permissions granted, the resulting developments of which were physically incompatible with the original permission.

Geldards represented the Snowdonia National Park Authority who’s predecessors had granted the 1967 permission. The issues were further complicated by declarations given by Drake J in 1987 to the effect that the 1967 permission may lawfully be completed at any time in the future, notwithstanding there having then been some incompatible developments in accordance with subsequent permissions. Since then however, further cases have considered the correct legal approach and further planning permissions had been granted and implemented, which in our client’s view rendered it impossible to implement the original permission and possible to relitigate the matter.

The issue was tried before Keyser J in September 2019, who found in favour of our client, although he did not adequately address arguments made to him on the issue of whether matters could be relitigated arising from the 1987 judgement, leading to an appeal. The appeal also considered Keyser J’s approach to the case of F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, to the effect that a planning permission grants permission for a number of independent acts each of which is separately permitted. Lucas was not followed by Keyser J and indeed has not been followed in any case since it was decided. It is arguably inconsistent with the line of authority more recently culminating in Sage v Secretary of State for the Environment [2003] UKHL 22; [2003] 1 WLR 983, which established that a “holistic approach” should be taken to the impact of a subsequent planning for incompatible development and regard should be had to the totality of the operations which the grant of a planning permission originally contemplated would be carried out, which was followed by Keyser J.

The Court of Appeal confirmed the principle in Sage, but did not overrule Lucas, commenting that in order to do so it would have to be satisfied that it was wrongly decided on its particular facts and that it was not possible to be satisfied of that, not least because it did not have the advantage of seeing the precise terms of the planning permission which was granted in that case. Instead the Court of Appeal concluded that the case should be regarded as having been decided on its own facts. However, Lucas will not be of much comfort to developers, Lord Justice Singh commenting as follows:

“It is conceivable that, on its proper construction, 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. I would merely add that, in my respectful view, 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. 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.”

The Court of Appeal left open an important question about the status of development already completed before subsequent, incompatible development is carried out and whether that was lawful of not. This is an interesting point and a potential trap for the unwary purchaser where multiple planning permissions exist for a development.

The Court of Appeal ultimately concluded that Keyser J was perfectly entitled to reach the conclusion that it is no longer possible to implement the 1967 permission in the light of factual developments since the judgment of Drake J in 1987. The decision is welcomed by our client, given its statutory responsibilities which made it incumbent upon it to seek to prevent building in the National Park which would be against the public interest.