Planning and Parliamentary Spotlight 2023

The Planning and Parliamentary team have had to keep up to speed with some significant cases in 2022 and, given the somewhat tumultuous political year, some changes of direction in policy and legislation, which will be following through into 2023.

Cases

Probably the most significant planning case to have been decided in 2022 (and therefore the one we focus on most) was Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The case raises issues of importance in planning law about the relationship between successive grants of planning permission for development on the same land.

Planning permission was granted in 1967 for 401 houses and some roads. Between 1996 and 2011 six further planning permissions relating to specific areas of the site were granted and implemented. In 2017, SNPA told Hillside Parks Ltd to cease all work in implementing the original 1967 permission because doing so to completion had been rendered impossible by the developments carried out under the later permissions. In response, the developer brought proceedings for a declaration that the 1967 permission remained valid and could be carried on to completion. The developer was unsuccessful in both the High Court and the Court of Appeal.

The Supreme Court also found against Hillside Parks Ltd. It said that an earlier case on which Hillside Parks Ltd relied could not be explained on the basis of abandonment, and that there was no basis in planning law whereby a planning permission could be abandoned. Instead, the development carried out under the later permission for the site had rendered the earlier permission incapable of implementation. The test of physical impossibility applied to the whole site covered by the unimplemented permission, not just part on which the landowner now wished to build.

The Court also rejected the argument that permission for a multi-unit development was severable into discrete permissions and said that a previous case to that effect had been wrongly decided. The development authorised by the 1967 permission was an integrated scheme which could not be severed. Accordingly, the implementation of an independent permission which departed in a material way from the 1967 scheme would make the 1967 scheme physically impossible to complete and hence make it unlawful to carry out any further development under the 1967 permission.

The case has been widely recognised as significantly limiting the use of “slot in” planning applications, particularly for larger developments. It will continue to be necessary to find work arounds for them. It also reaffirms the “Pilkington” principle that, in the event of inconsistent planning permissions, development cannot be carried out under one of them if it cannot be done in accordance with its terms i.e., if it is physically impossible to complete the development. The case also confirms that a failure to complete a development does not make what has been built out unlawful.

In the case of DB Symmetry Ltd v Swindon BC [2022] UKSC 33, the Supreme Court held that a planning condition which purported to require a landowner to dedicate roads on its development site as public highways would be unlawful. The court said that it would have been appropriate for such a requirement to have been contained in an obligation under section 106 of the Town and Country Planning Act 1990 i.e., it is an acceptable requirement if it is agreed by the developer.

Legislation

The most important piece of legislation for planners in 2021 was probably the Environment Act. In 2022 we waited to see which provisions in the Act would be brought into force. The Office for Environmental Protection is up and running, and the conservation covenants provisions and much of the rest of the Act is in force but in 2023 we will have to continue to keep an eye on when the biodiversity gain provisions go live. Right at the end of 2022, the Secretary of State published draft regulations setting out long term national environmental targets for water, biodiversity, fine particulate matter, marine protected waste, residual waste, and woodlands.

Undoubtedly the prize for planning legislation of 2022 goes to the Levelling-up and Regeneration Bill. It started out in Parliament in May and had the good fortune to be in committee stage straddling a period where we had three Prime Ministers and three Secretaries of State. Mr Gove went full circle: he was SoS when the Bill started and finished in committee, but in between there was Mr. Clark and Mr. Clarke.

This meant lots of changes to the Bill along the way and what has come out in the wash, and still needs to be considered by the House of Lords, is a Bill that contains numerous provisions including planning data, development plans, heritage, street votes, minor variations, commencement and completion notices, power to decline to determine applications in cases of earlier non-implementation, and development progress reports. There are also provisions about enforcement and consultation, a new infrastructure levy, nutrient pollution standards, urban development corporations and compulsory purchase.

We are keeping an eye out specially on the provisions about environmental outcomes reports, which are to replace the environmental impact assessment regime in due course, made possible by Brexit. It will take a fair bit longer until we know exactly what the new regime will entail, because the detail will be in regulations to be made once the Bill becomes law, but there could clearly be significant implications for developers and planning authorities.

Sharpe Pritchard’s planning team works for planning authorities and developers on significant development projects across the country including new settlements, urban redevelopments and highways. We also have significant experience of working on major infrastructure projects, regularly acting on development consent orders, TWA Orders and harbour orders for government departments, local authorities, landowners and transport providers.

Planning and Parliamentary: Alastair Lewis

Contributor: Tiah Weekes 

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Posted in Alastair Lewis, Latest news and blog, Parliamentary, Planning applications and agreements, Real Estate, planning and regeneration.