Problems with the Passage of Time: Hillside, the Supreme Court and the Mayhew Report
To misquote a popular saying, there are two things in life that are inevitable - ageing and taxes. The last couple of days has had me thinking a lot about the former (and inevitably a little about the latter); as two major events have taken place which rather highlight the problems that can be caused by the passage of time.
1. Hillside v Snowdonia National Park Authority: How to deal with the problems of an ageing consent
Firstly, at about 10.30am this morning, the Supreme Court issued its decision in Hillside v The Snowdonia National Park Authority - a case about the validity of drop in permissions, which has caused a lot of head scratching and confusion since the Court of Appeal decision came out.
I am not going to go into the background in any detail, it is set out in full in the judgment, which is a must read for pretty much everyone. The decision can be found here.
The case concerned a 1967 Permission, which aged rather badly, and how far it could be varied, by way of drop in permissions, before that original consent became incapable of being completed.
The Supreme Court has finally provided us with some much-needed clarity on this vexing issue. We now know that:
- Failure or inability to complete a project for which planning permission has been granted does not make development carried out pursuant to the permission unlawful;
- In the absence of clear express provision making it severable; a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible;
- The departures required to render compliance with that earlier permission “physically impossible” must be “material in the context of the scheme as a whole”. “What is or is not material is plainly a matter of fact and degree.”
- Rather than proceeding with drop-in consents, the correct approach seems likely to be that “an appropriately framed additional planning permission” should be sought “which covers the whole site and includes the necessary modifications. The position then would be that the developer has two permissions in relation to the whole site, with different terms, and is entitled to proceed under the second.” and
- “Where an application for a variation of a previous permission is properly to be regarded as an application for a fresh permission for the whole site, this may of course mean that the application is required to be accompanied by certain documentation relevant to the whole site, such as an environmental impact assessment. Where the variation is comparatively minor and circumstances have not changed, it may be possible to re-use or update such documentation submitted in support of the application for the previous permission. Whether this is possible or not will depend upon the particular circumstances.”
The decision does still leave some questions, however, which will need to be thought through, as they will be vital to determining how much of an impact this decision will have in practice.
- Firstly, how are we to assess whether a particular change or variation is “material in the context of the scheme as a whole” - as this is key to whether the Pilkington Principle is engaged in this way, it is likely to become a matter of some debate for schemes that are already underway;
- Secondly, what are the implications of the judgment for a outline or phased consent – would deliberate phasing of a development be sufficient to constitute “clear express provision making it severable”, particularly in the event that you are looking at a hybrid scheme, where some phases had a full planning permission and later phases were outline only? and;
- Finally, what are the CIL implications of amending by way of a holistic varying consent – can we deal with these consequences satisfactorily through the existing abatement provisions or are we likely to require a further amendment to the regulations.
In short, whilst we have much needed clarity from the Supreme Court, there is still a lot for the industry (and, in particular, us planning lawyers), to get our teeth into.
Some of these questions are likely to be addressed in the not-too-distant future in any event, as the Supreme Court’s solution to the issue of amending multi-unit consents is, at first blush, remarkably similar to the solution alighted on by Central Government.
Section 98 of the Levelling Up and Regeneration Bill, proposes introducing a new s.73B into the Town & Country Planning Act 1990. This provision would allow local authorities to grant new permissions for developments that are substantially the same as an existing permission, whilst only considering the variations between the two consents.
This would, if enacted, appear to enshrine the Supreme Court’s solution for multi-unit consents in planning legislation – albeit in a far less elegantly phrased manner. It does not, however, resolve the questions around phasing, or indeed abatement of CIL payments.
2. The Mayhew Report: How to deal with the problems of an ageing society
Barely twenty-four hours before the Supreme Court decision landed, we also saw the release of the Mayhew Review, which looked at the changes to housing and care systems necessary to deal with our rapidly ageing society.
This report is also essential reading and some of its conclusions are very stark. The following extract sets out where we are:
"Older people are living longer and remaining in their family homes for longer. Those homes are becoming increasingly under-occupied as children leave. Some say the answer is to build more, but the pace of change required is beyond the reach of the building industry. If enough homes were being built, prices would fall – but they are not.
Extrapolating these trends leads to some uncomfortable conclusions. Younger generations will struggle to own their own homes, with a knock-on effect on starting families. The social care system will struggle to find enough workers to deliver care to a widely dispersed older population. Keeping old people in hospital is not an option since it blocks beds and increases waiting lists.
With the number of people aged 65+ increasing from 11.2 million today to 17.2 million in 2040, the over-stretch of social and health care systems is set to get worse. There are currently around 1.6 million paid carers and 2 million informal carers spending more than 20 hours a week caring, more than half of all informal carers, according to the ONS Family Resources Survey 2020-21. Extrapolating to 2040, there will be 2.2 million formal carers and 2.7 million informal carers."
Thankfully, there are some practical ways forward here. In particular the report recommends:
- Launching the Older People’s Housing Taskforce immediately
- Reforming planning rules to make it easier to build housing suitable for later life
- Putting older people’s housing on a level playing field with all other developments
- Cutting Stamp Duty so it is the same for last-time buyers as first-time buyers
- Ramping up the financial advice available for older people looking to move
We have had warm words and statements of intent from a number of government departments over the years - but now is the time for action. We need to get on with it.
Hopefully, the Mayhew Review will finally serve as the wake-up call that central government needs.... after all, there are only so many times you can hit snooze before it is too late...
Older people are living longer and remaining in their family homes for longer. Those homes are becoming increasingly under-occupied as children leave.
...
Extrapolating these trends leads to some uncomfortable conclusions. Younger generations will struggle to own their own homes, with a knock-on effect on starting families. The social care system will struggle to find enough workers to deliver care to a widely dispersed
older population. Keeping old people in hospital is not an option since it blocks beds and increases waiting lists.”
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