Yesterday saw the Supreme Court deliver judgment in the case of Hillside Parks Ltd and Snowdonia, National Park authority - a case I referred to at our recent planning law seminars concerning “drop in” applications/permissions.
The case relates to the interaction between original planning consent and subsequent planning consent on the same site.
The Supreme Court reaffirmed what is known as the Pilkington principle, meaning that where a later permission means it is physically impossible to implement an earlier permission, the earlier permission can no longer be relied upon, and - moreover - future (but not existing) development under the earlier permission may be unauthorised.
The Supreme Court did, however, give two rays of light:
Firstly, the reference to "physical impossibility" of constructing the development authorised by the earlier permission is to be contrasted with mere incompatibility between the two permissions, which is not fatal, and secondly, non-material departures from the earlier permission will not be fatal.
Paragraph 68 of the judgment is particularly significant, and I quote:
“In summary, failure or inability to complete a project for which planning permission has been granted does not make development carried out pursuant to the permission unlawful, but in the absence of clear express provision making it severable a planning permission is not to be construed as authorising further development, if, at any stage, compliance with the permission becomes physically impossible".
Exact compliance with the earlier permission is not required as a departure will have this effect only if it is material in the context of the scheme as a whole.
Some commentators have made the analogy with a Section 96 non-material amendment (NMA) application, so that if the departure is something that the local planning authority consider could be dealt with by an NMA, then it potentially can be dealt with by a “drop-in” and without fatal consequences to the existing permission
In summary, where implementing the later (“drop in”) permission means any of the development authorised by the earlier permission is physically impossible, the earlier permission is incapable of further implementation, unless the incompatibility is not material in the context of the scheme as a whole.
The later permission can, however, be interpreted as authorising a variation to the earlier permission if it covers the whole Development site - for this to apply it will need to be accompanied by a plan which shows how the new permission incorporates the changes into a coherent design for the whole Development site, and in this situation, the governing permission for the whole site thereafter will be the later permission.
In practice, this raises huge implications because new permission for the whole site will require a new S106 agreement and all the attendant reports and plans that go with submitting a new planning application.
The judgment is complex; each particular case will depend on its particular facts and how the existing planning permission is proposed to be changed.
Please do get in touch if you have any matters where advice on this is going to be necessary; myself and my colleagues here at Holmes & Hills Solicitors would be delighted to assist.
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