Planning Freethinking February 2024: overlapping permissions following Hillside Parks – recent cases

In this month’s Planning Freethinking edition, we look at two recent cases which address the potential incompatibility of overlapping permissions following Hillside Parks.

Hillside Parks confirmed that generally the implementation of subsequent “drop-in” permissions renders incompatibility and further development under the original permission unlawful.

Recent cases

R (Fiske) v Test Valley Borough Council [2023] EWCA Civ 1495

Fiske addressed whether the Local Planning Authority (“LPA”) is obliged to take into account the incompatibility of two schemes when considering the application for the latter permission.

Permission was granted for a solar park in 2017. A further permission was granted in 2021 for a similar scheme within the same site. Implementation of the subsequent permission would render completion of the development pursuant to the original permission impossible. This incompatibility (and consequential risk of a breach of planning control) was not brought to the planning committee by the officer.

The claimant argued that the incompatibility was an “obviously material” consideration which the LPA had failed to account for when granting the subsequent permission. The High Court held that, in principle, the LPA was entitled to grant a permission which was incompatible with an earlier permission for the same site and noted that it was the developer’s responsibility to resolve any incompatibility and choose which permission to carry out.

The Court of Appeal dismissed the claimant’s appeal against the High Court’s judgment, agreeing that case law (including Hillside Parks) did not suggest that incompatibility was an obviously material consideration for the LPA. As has been the case since Hillside Parks, developers are reminded to properly consider lawful strategy for the implementation of overlapping consents.

R (Dennis) v LB Southwark [2024] EWHC 57 (Admin)

Please note that a more detailed note of this case, written by planning partner Chris May, can be found here.

Dennis considered the severability of a phased outline permission. The developer understood that the phases were individually authorised by the outline permission and therefore severable – which would allow future drop-in permissions.

To confirm that the constraints against drop-in permissions set by Hillside Parks had already been circumvented, the developer secured a non-material amendment using a s96A application to insert the word “severable” into the description of development.

If the outline permission was deemed severable, the insertion of “severable” into the description of development would be lawful. On the contrary, if the outline permission was not deemed severable, the amendment to the description would constitute a material amendment and fall outside of the scope of a s73 application.

The Court held that:

• the outline permission was not severable by virtue of its phasing in itself;
• the outline permission could not be made severable by inserting the word “severable” into the description of development; and
• the LPA had acted beyond its power by grating the non-material amendment.

The s96A permission was quashed and any future drop-in permission, if implemented, would render the remainder of the development under the original permission unlawful.

We have learned from Dennis that phasing arrangements alone do not ensure severability, and severability must be present at the time the original permission was granted otherwise it cannot be retrospectively confirmed by a s73 application or potentially a s96A (both parties agreed that the change here was material; therefore, Dennis did not consider whether a permission can be made severable by a s96A application (i.e., the change would not be material)).

Our view

These cases show us two things in the wake of Hillside Parks.

Firstly, until the Government legislates to remedy the situation around incompatible permissions and severability, developers must carefully consider their development strategy when dealing with overlapping permissions – even for phased outline permissions. This should be considered when seeking to acquire sites.

Secondly, the LPA is not required, and equally has little scope, to pragmatically assist developers. Unsure of their role, LPAs will be hesitant to engage with developers seeking to obtain drop-in permissions.

If you have questions or would like to discuss further please email a member of our Planning & Environment team.