1. On 3 November 2020 the Court of Appeal handed down judgment in a case involving a planning permission from 1967, a judgment from 1987, and three lines of authority on multiple permissions, the holistic approach to compliance, and abuse of process. Among other things, the judgment raises difficult questions about the flexibility of the planning code and the means by which major development schemes can be adapted to meet unforeseen events.
2. The facts are these. In January 1967 planning permission was granted for the construction of 401 dwellings on about 29 acres of land at Balkan Hill, Aberdovey, in the Snowdonia National Park. Ground conditions proved challenging and between 1967 and 1973 permissions were granted by the then LPA varying discrete parts of the development.
3. In 1985 the successor LPA denied the validity of the 1967 permission. The landowner issued proceedings for declarations as to its validity and in July 1987 Drake J held that the 1967 permission was valid and capable of completion. The site was acquired by its current owner (“Hillside”) shortly afterwards.
4. Between 1997 and 2011 the Snowdonia National Park Authority (now the LPA) granted further permissions varying elements of the development and Hillside carried out development in accordance with these permissions on the common understanding that in areas of the site where a variation permission had been granted the 1967 permission was no longer operative, but across the remainder of the site the 1967 permission was still capable of implementation.
5. In 2017 the LPA changed its mind and informed Hillside that the 1967 permission could no longer be relied on. In light of the LPA’s change of position the claimant issued proceedings in the High Court seeking declarations as to the binding effect of Drake J’s 1987 judgment and the validity of the 1967 permission. At first instance the claim was dismissed. The judge agreed with the LPA that as a result of development carried out pursuant to the variation permissions it was no longer physically possible to implement the 1967 permission as shown on the approved masterplan.
6. In Pilkington v Secretary of State for the Environment  1 WLR 1527 it had been held that where two or more permissions are granted for development of the same land, implementation of one permission may render it impossible to implement the other. In Sage v Secretary of State for the Environment  UKHL 22,  1 WLR 983 it had been held that if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. In light of these principles, the High Court held that the 1967 permission was no longer valid.
7. Hillside appealed to the Court of Appeal on the grounds that the judge had failed to consider whether it had been an abuse for the LPA to raise arguments about the validity of the 1967 permission based on Pilkington that could have been (but were not) raised before Drake J. Hillside also contended that the 1967 permission was for multiple acts of operational development, so that changes in one part of the site did not prevent reliance on the 1967 permission in other parts.
8. The Court of Appeal held that it was not an abuse for the LPA to raise the Pilkington argument given (a) the public interest in development in the National Park and (b) changes in the law marked by the decision of the House of Lords in Sage. On the evidence the judge had been entitled to conclude that development of the site pursuant to the variation permissions meant that it was no longer possible to carry out the scheme permitted in 1967. The Court went on to hold that the 1967 permission was not a permission for multiple independent acts of development.
9. The decision in Hillside has raised concerns for housebuilders and others. It is not uncommon for major schemes of development to be modified by so-called “drop-in” permissions, which allow for localised changes while leaving the rest of the original scheme unaffected. As the LPA retains control over the process, and can refuse permission if the proposed change is unacceptable in its own terms or would have adverse consequences for the wider scheme, there appears to be little reason to object to this. In the Hillside case, for instance, the National Park Authority had been content with this arrangement for over 20 years, granting several variation permissions.
10. The decision brings into question the proper scope of the principles in Pilkington and Sage. In Pilkington the landowner was seeking to implement two permissions, each for a single dwelling, within the same site. Although the two dwellings would physically fit within the site, each permission contemplated that there would be only one dwelling on the site. In those circumstances the court held that having implemented one permission the landowner could not implement the other. While understandable on its facts, it is not immediately obvious why it should prevent reliance on a drop-in permission, provided it is accepted that the original permission can no longer be implemented in the area of the drop-in permission.
11. As to Lord Hobhouse’s now famous observation in Sage beginning, “When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation …”, it is easy enough to apply to a single building, but when applied to a scheme for hundreds of houses it throws up troubling questions about the lawfulness of each house before the last house is constructed, and whether a relatively minor deviation in one house should render every other house unlawful.
12. Hillside has applied for permission to appeal from the Supreme Court and its decision is awaited.
Robin Green was counsel for Hillside Parks Ltd in the Court of Appeal. The judgment can be found HERE.