On this publish, Sam Porter, an Affiliate within the Planning crew at CMS, previews the upcoming Supreme Courtroom resolution within the case of Hillside Parks Restricted v Snowdonia Nationwide Park Authority UKSC 2020/0211. The case was heard on 4 July 2022.
Background
Hillside Parks Restricted (“HPL”) is the proprietor of an roughly 30-acre website in Aberdyfi, Snowdonia, which it acquired within the late Nineteen Eighties. In 1967, planning permission was granted for a big housing improvement on the location (“1967 Permission“). The authorised plan (“Authentic Grasp Plan”) recognized the proposed location of the buildings and roads which comprise the event.
From 1967 to 1974, eight additional planning permissions have been granted which permitted the event to be constructed in a way that differed from the Authentic Grasp Plan. A few of these permissions have been applied.
Excessive Courtroom proceedings have been first introduced in 1985. At this level, a small variety of buildings had been constructed, all of them pursuant to the permissions granted after the 1967 Permission, fairly than underneath the 1967 Permission itself. The landowner sought declarations concerning the standing of the 1967 Permission (and specifically whether or not it had lapsed). In his judgment, Drake J granted 4 declarations, the third of which is most related. In abstract, this declaration was that the event pursuant to the 1967 Permission had commenced and could possibly be legally accomplished at any time sooner or later (the “Third Declaration“).
Following the 1987 judgment, Snowdonia Nationwide Park Authority (“Snowdonia”) grew to become the native planning authority for the location. A sequence of additional planning permissions have been granted by Snowdonia within the interval from 1996 to 2011 which permitted further modifications from the Authentic Grasp Plan. From 1987 onwards, the developments carried out on the website have been all pursuant to the permissions granted following the 1967 Permission.
In 2017, Snowdonia knowledgeable HPL that it was thought-about that it was now not potential to implement the 1967 Permission. This was on the idea that it was now not bodily potential to construct the event in a way which was in step with the Authentic Grasp Plan.
Procedural Historical past
The current proceedings started as a declare underneath Half 8 of the Civil Process Guidelines. HPL sought declarations that:
1. Snowdonia was certain by the judgment and declarations of Drake J;
2. the 1967 Permission is legitimate and extant; and
3. the event could also be carried out underneath the 1967 Permission till completion, besides to the extent that any improvement has been carried out or is carried out pursuant to subsequent planning permissions.
In Hillside Parks Restricted v Snowdonia Nationwide Park Authority [2019] EWHC 2587 (QB), HHJ Keyser QC thought-about that there have been two points. First, whether or not Drake J’s Third Declaration was unsuitable in regulation, and secondly, whether or not Snowdonia certain by the Third Declaration.
In respect of the primary concern, the decide discovered no error in regulation. He thought-about that future improvement carried out underneath the 1967 Permission might now not be lawful as the event carried out pursuant to the permissions granted since 1967 now made it bodily unattainable to develop the location in accordance with the Authentic Grasp Plan. Particularly, among the properties should not constructed within the place proven on the Authentic Grasp Plan and, certainly, are in some circumstances situated the place the Authentic Grasp Plan stipulated that roads and footpaths ought to be constructed. Subsequently, improvement which had occurred since 1987 meant that Snowdonia might now not be certain by the Third Declaration.
The case was appealed to the Courtroom of Attraction, the place Singh LJ gave the main judgment. Singh LJ discovered that the Excessive Courtroom decide had been entitled to succeed in the view that it was now not bodily potential to implement the 1967 Permission.
HPL additionally argued that the decide had been unsuitable to rule that F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111 didn’t apply. The Lucas judgment signifies that planning permissions might, in some circumstances, be construed as authorizing a sequence of impartial acts. Following this method, though it could be bodily unattainable to hold out the event permitted by the unique permission on a part of a website, this may not render it illegal to hold out impartial acts of improvement underneath that permission elsewhere on the location. The Courtroom of Attraction mentioned that Hillside was not a Lucas case and noticed that Lucas was “a extremely distinctive case”.
HPL additionally contended that the proceedings represented an abuse of course of. The doctrine of abuse of course of requires that after a problem has been totally and eventually determined by the courts, the events can’t usually elevate subsequent authorized arguments which might have been raised within the preliminary proceedings. HPL argued that it was an abuse of course of for Snowdonia to make arguments primarily based on Pilkington v Secretary of State for the Setting [1973] 1 WLR 1527 (which pertains to the incompatibility of planning permissions) when that case had been determined in 1973 and but had not been raised by Snowdonia’s predecessor in title within the Excessive Courtroom proceedings within the Nineteen Eighties.
In contemplating whether or not an abuse of course of had occurred, Singh LJ defined {that a} “merits-based evaluation” of all of the information was required, together with each the private and non-private pursuits affected. In addition to HPL’s business pursuits, there have been additionally “vital public pursuits at stake”, together with stopping inappropriate improvement in a Nationwide Park. Singh LJ thought-about it related that Snowdonia had apparently, for a while previous to 2017, maintained that the 1967 Permission could possibly be applied on areas of the location which had not been developed pursuant to subsequent permissions; however this issue was not conclusive. The factual and authorized developments since 1987 meant that Snowdonia’s arguments weren’t an abuse of course of. Notably, the Courtroom of Attraction acknowledged that subsequent case regulation, together with Sage v Secretary of State for the Setting [2003] UKHL 22, has positioned better emphasis on the necessity to view planning permissions as an entire fairly than as consent for delineable acts of improvement.
Points on Attraction
There are two predominant points earlier than the Supreme Courtroom:
(1) Can the courtroom to consider the general public curiosity in not allowing inappropriate improvement in a Nationwide Park, when deciding whether or not it will be an abuse of course of for a celebration to make an argument which it did not make in earlier authorized proceedings?
(2) The place there are successive planning permissions regarding the identical website, and the later permissions are for modifications to at least one a part of a wider improvement authorised underneath the unique planning permission, does the implementation of the later permission(s) render the unique permission fully unimplementable? Or, within the various, might improvement pursuant to the unique permission nonetheless be carried out in areas of the location which haven’t been developed underneath the later permission(s)?
The Supreme Courtroom thought-about these points throughout a one-day listening to on 4 July 2022.
Remark
The Supreme Courtroom’s judgment will affirm whether or not it’s authorized to proceed improvement underneath an earlier permission as soon as there was a “drop-in” or “slot-in” planning permission masking a part of a scheme licensed by the sooner consent. Drop-in permissions are fairly frequent and have typically been utilized by builders to alter discrete elements of a improvement. Subsequently, this judgment is critical and will likely be of nice curiosity to builders and people with an curiosity in websites constructed underneath a drop-in permission. The Courtroom of Attraction declined to precise a view on whether or not the implementation of drop-in permissions would render improvement already carried out underneath the unique permission illegal. It will likely be fascinating to see how the Supreme Courtroom approaches this complexity. As well as, it is going to be fascinating to see if the Supreme Courtroom differentiates between the place the place there may be an overview or an in depth planning permission.
The Supreme Courtroom can even have the chance to offer additional steerage on the doctrine of abuse of course of and which components could also be taken under consideration when the problem of abuse is taken into account. It will have ramifications for civil litigation extra broadly.
