A new precedent was set for planning law earlier this year, with a fascinating case in North Wales that has the potential to significantly impact the industry – including developers like HBD.
In this new article, our colleague Chris Newsome explains the ruling, and the repercussions.
Planning is a complex part of property, with developers like HBD navigating changing waters as we strive to create places with purpose that meet the needs of local communities, while respecting heritage, aesthetics and local planning laws.
You’ll often find unusual cases that raise an eyebrow, but none has caught the industry’s recent attention as much as the ‘Hillside’ case in north Wales.
What is Hillside?
The case involved Hillside Parks Ltd and Snowdonia National Parks Authority – with an outcome that has the potential to affect developers who have large sites with an outline permission – especially if that permission was granted on the back of a Masterplan submitted with the original application.
It is widespread practice for developers to vary a consent (which is wider than a non-material or minor amendment) on large sites by submitting ‘drop in’ applications within the red line of the original outline application however in the future developers may have to proceed with some caution on the back of ‘Hillside’.
To provide a little history; permission for Hillside was granted way back in 1967, paving the way for 401 houses – the designs underpinned by a masterplan that illustrated the estate road and the location of each house.
By 2017, just 41 houses had been built up, but none of these homes reflected positions shown on the relatively ancient Masterplan, the reason being the developer had relied upon a series of separate planning applications to develop the homes on the site.
What happened next has turned heads; for reasons that are not clear (but which perhaps indicate how contentious the consent was) Snowdonia National Park Authority decided that due to the layout of the homes and estate road that had been built, the development could no longer be undertaken in line with the 1967 Masterplan and therefore the original permission had fallen away.
Hillside went to the High Court to contest the matter. Their argument being that the 1967 permission remained valid in line with the decision of a High Court declaration which was obtained back in 1987. However, spring forward 30 years to 2017 and both the High Court and the Court of Appeal now agreed that due to homes and road layout that had been constructed, the original development envisaged by the Masterplan could no longer be delivered and the 1967 permission had therefore fallen away. The highest court in the land, the Supreme Court, has now agreed with this decision.
The technical details
Still with us? A further twist came as Hillside argued that as permission was granted for several units, then the permission should have been considered to give consent for ‘a number of discrete acts of development’. The courts though? They appeared to agree that the starting point for deciding on such a consent is that a planning permission for a scheme with several units does not necessarily give a group of permissions to build each element of the multi-unit scheme.
So, to try and summarise the position. My understanding and interpretation are that this issue may be because the original consent was controversial and hence the delays in the scheme being delivered; together with the fact that residential layouts have changed massively from what was required back in the 1960’s. The lesson is that it is particularly important to review any existing consents when acquiring a site to see if there are provisos which clearly state that the individual elements of a large development are separable.
The Supreme Court did offer a possible solution for a site like the Hillside scenario, and this would be to submit a new application for the entire site but which covers the point of severability. The challenge of course could be that this may not be consented.
Cases such are complex but interesting, and it’s imperative that developers work with a skilled planning team to negotiate such conditions which make it clear that the elements of a large multi-unit scheme are separable, and that the Masterplan is clearly indicative.
It’s a good lesson to us all, and one that many across the industry will have an opinion on I’m sure!