The Supreme Court’s judgment in Hillside Parks v Snowdonia National Parks Authority [2022] UKSC 30 concerning inconsistent overlapping planning permissions is now three years’ old. Much has been written about where this judgment leaves the law on overlapping permissions and drop-in applications – and there have been a number of subsequent cases of note on related aspects – but what is the fall-out for the key stakeholders in the planning process?
Background
At the heart of Hillside was a peculiar set of facts whereby a developer was seeking to rely on a previously implemented masterplan consent from 1967 to carry out further development on a site in North Wales. This was notwithstanding that inconsistent development had been carried out on the site under more recent consents in the intervening 50 years or so.
In accordance with long established legal principles, the Supreme Court held that the implementation of these later permissions meant that the benefit of the original consent had been lost in respect to any further development. However, in grappling with the specific arguments before it, the Court’s judgment also raised some industry concerns around the severability of permissions going forward and the common practice of effecting scheme changes through drop-in applications.
So where are we three years on?
The Planning Application Process
For larger and more complex development sites, there is no doubt that, as a result of Hillside and subsequent cases, more thought is generally being given to the way planning permissions are constructed. Increasingly at the planning application stage, applicants are looking to try and build in flexibility and future proof their consents insofar as possible against Hillside issues.
In this regard, it is important to remember that Hillside is not a case about the legality of permissions at the point at which they are granted; rather it is a case about the implementation of consents and the implications for the lawfulness of the development carried out where there are multiple overlapping consents. For this reason, “Hillside risk” is perhaps not as much as a concern for local planning authorities at the point of grant – and therefore in the construction – of permissions as it is for applicants looking to take the development forward in the future.
Planning Enforcement
Looking to that future, there is no evidence that Hillside has led to a spike in planning enforcement cases either. This is unsurprising because, in practice, there will only be a Hillside issue if there are multiple consents in play for a site (usually because of changes to all or part of the originally consented scheme) and the local planning authority is unhappy with what a developer is actually doing onsite.
If the local planning authority considers a development to be in accordance with the series of consents that it has granted, it is difficult to see why it would be scrutinising the detail of how and when those consents were implemented, let alone considering enforcement action against a development that it is ultimately happy with.
Commercial Transactions
Of course, getting this wrong could still have serious consequences. For this reason, in the commercial and transactional space, Hillside risk is an increasing point of concern for developers and funders. In particular sites where there are multiple overlapping consents or where the transaction relates to development of part of a wider site – for example a residential plot/phase within a wider masterplan development – face greater scrutiny.
We see this manifesting itself in the due diligence process by greater scrutiny of the detail around the relative timings of when different permissions were implemented – and the relevant development completed – across a site. We see it too in the negotiation of contractual provisions to protect a party’s ability to rely on a particular permission for the development of its part of the site.
Legislation
Finally, it is notable that Hillside has featured in the recent Lords debates concerning the Planning and Infrastructure Bill – specifically in the context of an amendment proposed by Lord Banner KC to clarify the relationship between overlapping permissions and so “fix” issues arising from the Supreme Court’s judgment.
Whilst the Government rejected the proposed amendment to the Bill, it acknowledged the development industry’s general concerns about Hillside and indicated that it would be taking a two-step approach to resolving the same: Firstly, it intends to implement provisions in the Levelling-up and Regeneration Act 2023 to bring into force the new power to materially vary planning permissions (i.e. the power that is to be section 73B of the Town and Country Planning Act 1990); and secondly the Government intends to explore additional statutory solutions with the sector, potentially to put drop-in applications on a statutory footing.
The lack of timetable for either of these steps could be perceived as the Government “kicking the can down the road”. Nonetheless, there is logic to the Government’s position here: Once in force, section 73B should help even if it is not the complete answer, whilst any additional legislation to address the issues arising from Hillside needs to be carefully worked through; this is not simple stuff and there is a very real risk of unintended consequences. First and foremost, the Government needs to be clear about what it is fixing and for whom as there will be potentially different consequences for different stakeholders.
If you would like to know more about the matters raised in this article or otherwise require any planning advice or assistance, please do not hesitate to contact Michael Dempsey
