Hillside Parks Ltd v Snowdonia National Park Authority

Town and country planning – Planning permission – Pilkington principle – Successive planning permissions granted for development on same site – High Court determining that further development of site with planning permission for residential development unlawful – Court of appeal dismissing challenge to that decision – Appellant developer appealing – Whether original permission authorising single scheme of development – Appeal dismissed In 1967, the respondent’s predecessor granted the appellant’s predecessor planning permission for a residential development comprising 401 dwellings on 28.89 acres of land at Balkan Hill, Aberdyfi in Snowdonia National Park. A number of variations were made to the original plan and, in 1987, the High Court held that the 1967 permission had been lawfully granted, the development had begun and could be lawfully completed at any time in the future. The appellant purchased the site in 1988 and further building works were carried out. By 2017, only 41 dwellings had been completed and the respondent took the view that the 1967 permission could no longer be implemented because the developments carried out in accordance with later planning permissions rendered it impossible to implement the original master plan. Accordingly, the respondent required all work on the site to cease until the planning situation had been regularised. The High Court determined that the development since 1987 rendered the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful. The court rejected the appellant’s argument that the exception in F Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P&CR 111 applied: [2019] EWHC 2587 (QB). The appellant’s appeal to the Court of Appeal was dismissed: [2020] EWCA Civ 1440; [2020] PLSCS 199. The appellant appealed to the Supreme Court. Held: The appeal was dismissed. (1) The scope of a planning permission depended on the terms of the document recording the grant. Its interpretation was a matter of law for the court. Planning permissions were to be interpreted according to the same general principles that applied in English law to the interpretation of any other document that had legal effect. The exercise was objective, concerned not with what the maker of the document subjectively intended or wanted to convey but with what a reasonable reader would understand the words used, considered in their particular context, to mean: Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362; [2016] 1 WLR 85 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; [2019] EGLR 42 considered. In this case, the court was concerned with grants of full planning permission, in relation to which it was to be expected that a reasonable reader would understand that the detailed plans submitted with the application had particular significance: Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin); [2008] PLSCS 176; [2009] JPL 243 considered. (2) In Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, it was established where two separate applications were granted in respect of the same site, and one of them was then implemented, the question arose whether it was lawful to carry out the development contemplated by the other permission. The test was whether it was physically possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which had been implemented: Pilkington reaffirmed. It was important to recognise that the test of physical impossibility applied to the whole site covered by the unimplemented planning permission, and not just the part of the site on which the landowner now wished to build. In the present case, the proposed development was mutually inconsistent with the 1967 scheme. Therefore, it was now physically impossible to develop the site in accordance with that permission. (3) The appellant contended that Pilkington should be analysed as resting on a principle of abandonment whereby the right to develop land under a planning permission would be lost if a landowner acted in a way which would lead a reasonable person to conclude that the right had been abandoned. However, the test was not based on any abandonment of an earlier permission but on the physical impossibility of carrying out that which was authorised in the earlier planning permission. There was no room for any principle in planning law whereby a planning permission might be extinguished by abandonment: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183; [1985] AC 132 applied. (4) The court rejected the appellant’s argument that a planning permission for a multi-unit development was properly interpreted as severable into a set of discrete permissions to construct each individual element of the scheme relying on the decision in Lucas, which was clearly wrongly decided. The analytical error made in Lucas was to fail to distinguish between two significantly different propositions. The first was that, from a spatial point of view, a planning permission to develop a plot of land was not severable into separate permissions applicable to discrete parts of the site. The second was that, from a temporal point of view, development authorised by a planning permission was only authorised if the whole of the development was carried out. The rejection of the second proposition did not undermine the first. (5) The courts below were right to hold that the 1967 permission was a permission to carry out a single scheme of development and could not be construed as separately permitting particular parts of the scheme to be built alongside development on the site authorised by independent permissions. It was possible in principle for a local planning authority to grant planning permission which approved a modification of an entire scheme rather than constituting a separate permission referable just to part of the scheme. But the appellant had failed to show that the additional planning permissions under which development had been carried out since 1987 should be construed in that way. That development was inconsistent with the 1967 permission and had the effect that it was physically impossible to develop the site in accordance with the master plan approved by the 1967 permission. Furthermore, other development which had been carried out for which the appellant failed to show that any planning permission was obtained had the same effect. Charles Banner KC, Robin Green and Matthew Finn (instructed by Aaron & Partners LLP, of Chester); appeared for the appellant; Gwion Lewis KC (instructed by Geldards LLP, of Cardiff) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Hillside Parks Ltd v Snowdonia National Park Authority