Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30

A developer sought to rely on a 1967 planning permission for 401 dwellings despite having built houses under subsequent inconsistent permissions. The Supreme Court held that where development materially departs from an approved scheme under independent permissions, the original permission becomes incapable of further implementation due to physical impossibility.

Facts

Hillside Parks Ltd (the Developer) owned approximately 29 acres of land at Balkan Hill in the Snowdonia National Park. In January 1967, planning permission was granted for 401 dwellings in accordance with a detailed Master Plan. Over more than 50 years, only 41 houses were built, none in accordance with the Master Plan. Instead, the Developer obtained separate planning permissions for developments that materially departed from the original scheme. Following Drake J’s 1987 judgment confirming the 1967 permission remained valid, further development continued under additional permissions granted between 1996 and 2011, some described as ‘variations’ of the 1967 permission.

The Dispute

In 2017, Snowdonia National Park Authority (the Authority) wrote to the Developer asserting it was now impossible to implement the 1967 permission further. The Developer brought proceedings seeking declarations that the 1967 permission remained valid and could be completed.

Issues

The central issue was whether the Developer could lawfully carry out further development under the 1967 permission, or whether development carried out under subsequent inconsistent permissions had rendered the 1967 permission incapable of further implementation.

Subsidiary Issues

Whether planning permissions for multi-unit developments are severable into separate permissions for individual units; whether the post-1987 permissions operated as variations of the 1967 permission; and whether a doctrine of abandonment applies in planning law.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Sales and Lord Leggatt (with whom Lord Reed, Lord Briggs, and Lady Rose agreed) delivered the judgment.

No Doctrine of Abandonment

The Court rejected the Developer’s argument that the Pilkington principle rested on abandonment. Lord Sales and Lord Leggatt stated:

We do not accept that the decision in the Pilkington case can be explained on the basis of a principle of abandonment, nor indeed that there is any principle in planning law whereby a planning permission can be abandoned.

This was consistent with Pioneer Aggregates, where the House of Lords held there is no room for such a principle in planning law.

The Pilkington Principle

The Court affirmed the Pilkington principle:

In essence, the principle illustrated by the Pilkington case is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted.

Multi-Unit Developments Not Severable

The Court held that planning permission for a multi-unit development is not severable into separate permissions for individual elements:

planning permission for a multi-unit development is applied for and is granted for that development as an integrated whole. In deciding whether to grant the permission, the local planning authority will generally have had to consider… a range of factors relevant to the proposed development taken as a whole.

The Court disapproved of the decision in F Lucas & Sons Ltd v Dorking and Horley Rural District Council (1964), holding it was wrongly decided.

Post-1987 Permissions Were Independent

The Court found that the post-1987 permissions were not variations modifying the original scheme but independent permissions. No revised Master Plan had been submitted showing how the proposed developments would integrate with the 1967 scheme as a coherent whole. The Court stated:

Mere use of the ‘variation’ label by itself is not sufficient to show how the new permission ought properly to be interpreted, when read as a whole and having regard to the relevant context.

Implications

This decision clarifies important principles in planning law regarding successive permissions on the same site. It confirms that where development under independent permissions materially departs from an approved scheme, the original permission becomes incapable of implementation. Developers seeking to modify approved schemes must either obtain permission covering the whole site with modifications incorporated, or accept that independent permissions may extinguish their ability to rely on the original permission. The judgment provides guidance on how ‘variation’ permissions should be framed and documented to preserve an original permission’s validity.

Verdict: Appeal dismissed. The 1967 planning permission was incapable of further implementation because development carried out under subsequent independent permissions had made it physically impossible to complete the development in accordance with the Master Plan approved by that permission.

Source: Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30