Supreme Court clarifies position with respect to “drop in” Planning Permissions

The Supreme Court has unanimously dismissed an appeal against the decision of the Court of Appeal in Hillside Parks Limited v Snowdonia National Park Authority [2022] UKSC 30 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 made the original development physically impossible to complete.

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 planning permissions had been granted and implemented, which rendered it physically impossible to implement the original permission and possible to relitigate the matter.

The issue was originally tried before HHJ Keyser QC in the High Court who found in favour of Snowdonia, although it was suggested on appeal that he did not adequately address arguments made to him on the issue of whether matters arising from the 1987 judgement were res judicata and could be relitigated.

That matter was disposed of on appeal, but the Court of Appeal also considered HHJ Keyser QC’s approach to the case of F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, where it was concluded that a planning permission grants permission for a number of independent acts each of which is separately permitted. Lucas was not followed by HHJ Keyser QC and indeed it has not been followed in any case since it was decided.

The Court of Appeal did not overrule Lucas, concluding that the case should be regarded as having been decided on its own facts.

However, the Supreme Court has now concluded that Lucas was clearly wrongly decided on its facts – there being no term in the permission being considered which required it to be interpreted in the way it was – although the judgement leaves open the possibility that an appropriately worded permission could be construed that way.

The Court of Appeal decision had also 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. The Supreme Court commented upon the impact of Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22; [2003] 1 WLR 983, a decision of the House of Lords, and the reference made to that case in Singh v Secretary of State for Communities & Local Government [2010] EWHC 1621(Admin). It found that the ratio of Sage was that for the purposes of section 171B of the Town and Country Planning Act 1990 building operations carried out without planning permission are not substantially completed until construction of the whole development contemplated by the permission is substantially completed. It was in this context that Sage advocated for a “holisitic approach”. The Supreme Court concluded that failure to complete a project for which permission had been granted does not make development carried out pursuant to the permission unlawful. This will be of some comfort to conveyancers in that a potential trap no longer lies waiting for an unwary purchaser where multiple planning permissions exist.

The Supreme Court also addressed concerns expressed by some planning commentators that the Court of Appeal decision made the use of “drop in permissions” uncertain, finding that there was nothing to stop a developer using an appropriately framed additional permission either which covers the whole of the site and includes the necessary modifications or by accompanying an application for a part of the site with documentation relevant to the whole of the site showing how the scheme of development is being modified. The Court expressly confirmed that, in principle, it is possible to grant individual permissions which approve a modification of a wider scheme. The developer in this case had however failed to show that the permissions granted should be construed in that way and the development carried out was, on the facts, inconsistent with the original permission. That had the effect that it was physically impossible to build the original development.

The express recognition of the principle of the concept of a drop in permission will be very welcome news to developers and those that advise them, ensuring that there is flexibility in any redesign of a scheme that may be required, without necessarily having to make a planning application for the whole of the development.

The key message for an applicant to take away from the Supreme Court is that:

• they should be absolutely clear in their application if they are seeking to achieve a “drop in” modification of a wider scheme that already benefits from permission; and
• that aim is actually achieved by the redesign – which should show how it links appropriately to the remainder of the original development that is proposed to be carried out.

Geldards represented Snowdonia from an early stage in the Hillside litigation. The decision is welcomed by Snowdonia, given its statutory responsibilities which made it incumbent upon it to seek to prevent building in the National Park which would be contrary to its purposes.