Two years less a day since the Court of Appeal’s judgment in Hillside, the Supreme Court has now ruled on whether it is possible to have the benefit of multiple overlapping planning permissions.
The headline points arising from the judgment are:
- The Court of Appeal decision has been upheld. Where it is ‘physically impossible’ to build out an earlier planning permission in accordance with its terms, the earlier planning permission cannot be relied upon for future development.
- Although this confirms that the long-established use of ‘drop-in’ or ‘slot-in’ planning permissions is restricted, the Supreme Court has provided four helpful points of clarification:
- Development already carried out under the earlier planning permission is not rendered unlawful by subsequent development which is not physically possible under that planning permission.
- ‘Mere incompatibility’ between planning permissions, by which the Court means where there is no physical conflict, does not cause a problem. For example, the fact that a condition to an earlier planning permission cannot be complied with as a result of the subsequent planning permission does not result in the loss of the benefit of the original permission. ‘Mere incompatibility’ would, however, continue to give rise to an enforcement risk for breach of condition.
- Precise compliance with the earlier permission is not required. For physical impossibility to occur, there must be a material departure from the earlier planning permission. What is material is assessed with reference to the scheme as a whole and is a matter of fact and degree. This may make it easier to argue that it is possible to hold multiple implemented planning permissions in respect of a single site, but this will need consideration on a case by case basis.
- The Supreme Court decided that the planning permission in Hillside did not comprise independent acts of development that could be implemented separately. This would have preserved some of the original permission in areas where there was no physical incompatibility. It may still be possible to construe a planning permission as authorising a series of independent acts, but this will need to be very clear on the face of the planning permission.
- A later full planning permission cannot generally be considered a ‘variation’ of an earlier planning permission, even if it is labelled as such. However, it may be possible for a subsequent full planning permission to be construed as a variation where it is ‘an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications.’ Quite what this means in practice is open to interpretation, but this may allow some form of ‘drop-in lite’ subsequent planning permission to be delivered alongside the earlier planning permission. This would require submission of a plan to demonstrate that the two planning permissions work together as a coherent design for the whole site.
We are considering the full implications of the Supreme Court judgment and will comment further in due course.
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