Hillside Parks Ltd v Snowdonia National Park Authority
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] UKSC 30 |
| Court | Supreme Court |
2022 July 4; Nov 2
Planning - Planning permission - Inconsistent planning permissions in relation to same site - Planning permission granted for development of site as housing estate - Further planning permissions subsequently granted and implemented in relation to part of same site - Whether lawful to carry out development under original permission - Whether lawfulness of such development dependent on whether landowner abandoning right to carry it out - Whether permission for development comprising multiple units to be construed as authorising single scheme or multiple acts of development - Whether later permissions varying original permission -
In 1967 the then local planning authority granted planning permission for the development of a site as a housing estate with 401 dwellings, to be built in accordance with a master plan which identified the proposed location of each dwelling and the road system for the estate. Between 1996 and 2011 the authority’s successor as planning authority made eight additional grants of planning permission for development on the site which departed from the master plan. Six of those planning permissions were implemented, all in the north-west part of the site. Three of the permissions that were implemented were expressed on their face to be “variations” of the 1967 permission. In 2017 the planning authority wrote to the developer of the site requiring it to stop all works on the site on the ground that it was no longer physically possible to implement the 1967 planning permission. The developer brought proceedings in the High Court seeking a declaration that the 1967 planning permission remained valid and could be carried out to completion. The High Court refused to grant the declaration and the Court of Appeal dismissed the developer’s appeal. The developer appealed, contending in the alternative: (i) that the right to develop land in accordance with a planning permission would not be lost by virtue of development under a later permission unless the landowner had acted in a way which would lead a reasonable person to conclude that that right had been abandoned; (ii) that, unless it expressly said otherwise, a planning permission for the construction of multiple buildings was properly construed as permitting the construction of any sub-set of those buildings, and there was no reason why the landowner could not combine such development with development on other parts of the site authorised by other planning permissions; and (iii) that each of the six additional planning permissions that had been implemented was to be construed as a variation of the 1967 permission, with the consequence that the 1967 permission, as so varied, remained valid and capable of further implementation.
On the appeal—
Held, dismissing the appeal, (1) that there was no principle in planning law whereby a planning permission could be abandoned, or extinguished by abandonment; that such a principle would involve an impermissible gloss on section 75(1) of the Town and Country Planning Act 1990, which impliedly provided that only the 1990 Act or the terms of a planning permission itself could stop a planning permission enuring for the benefit of the land and of all persons for the time being interested therein, and would be inconsistent with the principle that the existence or otherwise of a valid planning permission should be capable of ascertainment by inspection of the planning register and the land in question; that, rather, where two mutually inconsistent planning permissions were granted in respect of the same site and one of them was implemented, it would be unlawful to carry out the development proposed in the unimplemented planning permission if it had become physically impossible to do so, having regard to what had been done under the implemented permission; and that, accordingly, in the present case, the 1967 planning permission would not authorise development if, as a result of physical alteration of the site to which the permission related, it had become physically impossible to carry out the development for which that permission had been granted (post, paras 35–45).
(2) That where planning permission was granted for the development of a site comprising multiple units it was not to be construed, absent clear express provision, as authorising a number of independent acts of development, each of which was separately permitted by it, but rather was to be construed as authorising a single scheme which could not be disaggregated in that way; that, where planning permission authorised a single scheme, failure or inability to complete the whole scheme did not make development already carried out pursuant to that permission unlawful, but further development under that permission would be unauthorised if at any stage compliance with the permission became physically impossible; that, in the present case, the 1967 permission, properly construed, authorised a single scheme of development on the site, rather than authorising particular parts of the scheme to be built alongside development of the site authorised by independent permissions; and that it followed that carrying out, under an independent planning permission, development on the site which departed in a material way from that scheme would make it physically impossible and hence unlawful to carry out any further development under the 1967 permission (post, paras 50, 68–69, 71–72).
(3) That although strictly speaking a planning permission could not be “varied”, save by a local planning authority under section 96A of the 1990 Act, as a matter of principle there was no reason why a grant of planning permission could not, on its true construction, authorise development in accordance with an earlier permission but with specified modifications; that, thus, the later permission would be construed as a permission to carry out the development described in the original permission as modified to accommodate the development specifically authorised by the new permission (and as modified by any previous such “variations”); that, in the present case, the developer had failed to show that any of the six permissions which had been implemented between 1996 and 2011 could be construed as approving a modification of the scheme authorised by the 1967 permission; that, rather, each of those six permissions constituted a separate permission referable solely to the specific limited area of land to which it applied; that it followed that development under those six permissions was inconsistent with the 1967 permission and had the effect that it was physically impossible to develop the site in accordance with the master plan approved by the 1967 permission; that, furthermore, other development had been carried out for which the developer had failed to show that any planning permission had been obtained, as a result of which it was now physically impossible to develop the site in accordance with the master plan approved by the 1967 permission; and that, accordingly, the judge and the Court of Appeal had been right to dismiss the developer’s claim (post, paras 76–77, 81–82, 88, 90, 100).
The following cases are referred to in the judgment of Lord Sales and Lord Leggatt JJSC:
Barnett v Secretary of State for Communities and Local Government
Cardiff City Council v National Assembly for Wales
Durham County Council v Secretary of State for the Environment (
Finney v Welsh Ministers
Hoveringham Gravels Ltd v Chiltern District Council (
Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government
Lever Finance Ltd v Westminster (City) London Borough Council [
Lucas (F) & Sons Ltd v Dorking and Horley Rural District Council (
Pilkington v Secretary of State for the Environment [
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [
Prestige Homes (Southern) Ltd v Secretary of State for the Environment (
R v Arfon Borough Council, Ex p Walton Commercial Group Ltd [
R (Robert Hitchins Ltd) v Worcestershire County Council
Sage v Secretary of State for the Environment, Transport and the Regions
Singh v Secretary of State for Communities and Local Government
Slough Estates v Slough Borough Council (No 2) [
Staffordshire County Council v NGR Land Developments Ltd
Trump International Golf Club Scotland Ltd v Scottish Ministers
No additional cases were cited in argument.
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