Viable Placemaking are thrilled to have supported the upgrade of a major residential development, having put the infamous Hillside judgement in practice.
The site, located to the north of Basingstoke, had extant planning permission for 26 flats. This was subsequently split into two phases of development: Phase 1 for a new build block of 10 flats and Phase 2 for the remaining 16 flats. However, following the commencement of Phase 1, the applicant sought to expand the permission to a total of 32 flats.
The new development was a significant change to the original permission and, therefore, could not be done as a 'variation application' to the original approval under Section 73 of the Town and Country Planning Act 1990. Consequently, a new, full, major planning application was required.
In 2022, the Surpreme Court issued the judgement in the case of Hillside Parks Ltd (Appellant) v Snowdonia National Park Authority (Respondent) [2022] UKSC 30 (“Hillside”).
The Hillside Judgement was significant in the town planning system and reaffirmed the 'Pilkington principle' regarding the physical possibility to conduct a development in the context of multiple planning permissions. The judgement clarifies at paragraph 45 that “the principle illustrated by the Pilkington case is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission)... Where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1)”.
Essentially - where permission 'A' and 'B' overlap making a development physically impossible, applicants must be cautious to ensure the development they are conducting is lawful.
There are several other implications from the Hillside Judgement, including the lawfulness of earlier permissions, variation applications, and the serverability of planning permissions - the latter which was considered further recently within Dennis 2024 .
In this instance, permission 'A' had approved 26 flats and, had the applicant sought a permission only on altering phase 2, this would have made the overall development - including the associated parking, infrastructure and other provisions - physically impossible. Therefore, in this instance, the new application was required to consider the entire development.
Viable Placemaking supported this scheme with a Planning Statement which comprehensively considered the development against the Council's local planning policies in the context of the Hillside judgement and other planning case law. The scheme was subsequently approved and will bring much-needed housing to a sustainable, brownfield site.
Several other factors remain in the wings of this planning permission, including the management of the Community Infrastructure Levy (CIL) liability of the various phases of development, which must be thoughtfully managed by the applicant throughout the stages of development. Nevertheless, like many developments, the main goal of achieving planning permission has been achieved.
Hillside has provided a great deal of food for thought for town planners around the UK in the recent two years and will for the coming years. If you are reviewing a potential development and think Hillside may have applications for your site, please don't hesitate to get in touch and a member of our team will be happy to help.
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