Overlapping planning permissions

Overlapping planning permissions

“On 2 November 2022 the Supreme Court unanimously dismissed the appeal of the developer, Hillside Parks Limited, relating to a long running dispute with the Snowdonia National Park Authority (SNPA).  The dispute concerned a planning permission granted more than 50 years ago that was followed by a series of additional planning permissions for development on parts of the same site and created what is known as overlapping planning permissions.  This is an important judgment that contains a detailed analysis on key legal principles and the consequences arising from the overlapping permissions,” says Brian Dinnis of Acorn Rural Property Consultants.

“In Hillside, planning permission was granted in 1967 for 401 dwellings in the Snowdonia National Park.  An approved master plan identified the proposed location of each dwelling and a road system for the development.  By 1985 nineteen dwellings had been built. None of these conformed with the master plan.  Instead, they were the subject of additional planning permissions that had been obtained relating to parts of the site.

In 1987 in the High Court, Mr Justice Drake found that the 1967 planning permission had been implemented and that it could still be lawfully completed at any time in the future.  After Drake J’s declarations, development was undertaken pursuant to a series of further planning permissions, some of which were described as variations to the 1967 permission.  These resulted in dwellings and garages being built where roads were shown on the 1967 master plan and vice versa.

In 2017 the SNPA informed Hillside that it could not build under the 1967 permission.  Hillside issued legal proceedings seeking a declaration that the permission remained valid.  The High Court and the Court of Appeal rejected Hillside’s claim.  The courts ruled that the work undertaken since 1987 made it physically impossible to complete the development fully in accordance with the 1967 permission and the consequence of that was that further development under that permission would be unlawful”, explains Dinnis

“Hillside then appealed to the Supreme Court which determined that the lower courts were right to dismiss the developer’s claim.  The court agreed that, if at any stage it becomes physically impossible to build out an earlier planning permission in accordance with its terms, the earlier permission cannot be relied upon for future development.  The judgment clarified that a departure from a planning permission will have this effect only if it is material in the context of a scheme as a whole.  It also emphasised that the test of physical impossibility applies to the whole site covered by the earlier planning permission, and not just the part of the site on which the developer now wishes to build.  It is also obvious from the judgment that a later planning permission cannot be regarded as a variation of an earlier planning permission, even if it is labelled as such, unless it is an appropriately framed additional permission that covers the whole of the development site and includes the necessary modifications”, continues Dinnis.

The judgment, for those who wish to read it, can be found here.

“This case underlines the need for great care to avoid undertaking development that would prevent a planning permission from being implemented fully in accordance with its terms.  For non-material changes and minor material alterations, the established procedures for making such amendments to planning permissions remain available.  For changes that cannot be dealt with under those provisions, the court’s suggestion of applying for a fresh planning permission that covers an entire development may be unattractive in many cases due to the potential costs and delays of making such applications.  It is also possible to the see that the case will create difficulties when purchasing or selling unbuilt plots with planning permission that form part of a wider development, as any events before or after the transfer that would render it physically impossible to complete the development fully in accordance with the original permission would render further development under it unlawful”, concludes Dinnis.

For further information please contact Acorn Rural Property Consultants on 01884 212380.

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