Citation: [2022] UKSC 30
Summary of the Facts
A property developer appealed against a decision that it was no longer possible for a planning permission it held to be implemented and that further development under that permission would be unlawful.
Planning permission had been granted in 1967 for 401 houses to be built, based on a plan showing the layout of the houses and connecting roads. Between 1996 and 2011 the respondent local planning authority granted six planning permissions relating to specific areas of the site. Those permissions were implemented. In total only 41 houses were built, none of them in accordance with the 1967 plan. In 2017 the authority told the developer to cease all works because implementation of the 1967 permission had been rendered impossible by the developments carried out under the later permissions; for example, houses had been built where some of the roads were meant to be under the 1967 plan, and a road had been laid where a row of houses was supposed to stand. The developer brought proceedings for a declaration that the 1967 permission remained valid and could be carried on to completion. The High Court concluded that the works under the later permissions had rendered the 1967 plan physically impossible. The Court of Appeal upheld that decision.
Although it had been held in Pilkington v Secretary of State for the Environment [1973] 1 W.L.R. 1527 that, where two permissions had been granted for the same site, and one permission was implemented, the other permission could not be lawfully carried out if what had been built made it impossible, the developer argued that this case differed from Pilkington in that (1) Pilkington was based on the abandonment of the right to develop land, which this case was not; (2) a permission, such as the 1967 permission, for the construction of multiple buildings was properly interpreted as permitting the construction of any subset of those buildings, so a landowner could combine such development on parts of the site with development on other parts authorised by other permissions; (3) the additional permissions implemented were variations of the 1967 permission, meaning that the 1967 permission as varied remained valid and capable of further implementation.
Held – Lord Sales and Lord Leggatt (with whom Lord Reed, Lord Briggs, and Lady Rose agreed)
Appeal dismissed.
Abandonment – The Pilkington decision could not be explained on the basis of abandonment, nor was there any basis in planning law whereby a planning permission could be abandoned, Pilkington explained, Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] A.C. 132 followed. The correct explanation was that 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 of the site on which the landowner now wished to build (see paras 35-37, 41 of judgment).
Severability – The developer relied on F Lucas & Sons Ltd v Dorking and Horley Rural DC 62 L.G.R. 491 in arguing that permission for a multi-unit development was severable into discrete permissions. In that case, such a permission had been interpreted in that way, allowing a developer to build houses permitted under one planning permission despite the implementation of a later permission having made implementation of the overall scheme of the first permission physically impossible. However, that was an improbable meaning to give to the first permission in Lucas; nothing in the judgment justified such a conclusion and it was clear that the case was wrongly decided. Lucas had correctly rejected the proposition that, temporally, development authorised by a permission was only authorised if the whole development was carried out, but that rejection did not undermine the proposition that, spatially, a permission to develop a plot of land was not severable into separate permissions applicable to discrete parts of the site, Lucas disapproved. Failure or inability to complete a project for which permission had been granted did not make development carried out pursuant to the permission unlawful, but, in the absence of clear express permission making it severable, a permission was not to be construed as authorising further development if at any stage compliance with the permission became physically impossible, Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22, Singh v Secretary of State for Communities and Local Government [2010] EWHC 1621 (Admin) and R. (on the application of Robert Hitchins Ltd) v Worcestershire CC [2015] EWCA Civ 1060 considered. It was unlikely that a permission for multiple units would be severable. The scheme granted by the 1967 permission was an integrated scheme which could not be severed. Accordingly, the carrying out of an independent permission which departed in a material way from that scheme would make it physically impossible and hence unlawful to carry out any further development under the 1967 permission (paras 47-49, 54-55, 68, 71-72).
Variation – Three of the six later planning permissions implemented were expressed on their face to be variations of the 1967 permission, but the development that took place under them had been substantially at variance from the 1967 plan. They did not authorise a new development scheme for the whole site. A reasonable reader would understand them to relate only to specific sites within the area. The other three permissions were not stated to be variations of the 1967 permission. While two of those permissions referred to plot numbers used in the 1967 plan, that did not convey to the reasonable reader that those permissions authorised local modifications of the 1967 permission while leaving the 1967 permission otherwise intact: the 1967 plan was being used there for the purpose of geographical reference. Although the developer argued that a reasonable reader aware of the planning history would not understand those permissions as operating at the expense of the whole scheme, it was wrong to assume that the planning history of a site was relevant to the interpretation of permissions: a permission should be regarded as self-contained unless it said otherwise. In any event, the history showed that there had been substantial departures from the 1967 plan and that the later developments meant that the 1967 permission could not be implemented according to its terms. The development authorised by the later permissions had made it physically impossible to implement the 1967 permission (paras 81-91).
