Running Up That Hill(side) ' Supreme Court Strikes A Blow Against Cakeism

• Published date: 08 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Herbert Smith Freehills
• Author: Mr Matthew White and Ben Hazenberg

Back in December 2020 we analysed the Court of Appeal's decision in the case of Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440, in which the Court held that implementation of a masterplan pursuant to a 1967 permission was no longer possible due to developments carried out under later permissions (our December 2020 article, which summarises the facts of the case and the Court of Appeal's decision, can be found here). On Wednesday 2 November, the Supreme Court handed down its judgment in the landowner's appeal (Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30). The Supreme Court unanimously rejected the appeal and in doing so has provided very helpful clarification of the legal principles governing overlapping planning permissions. Headline points for developers arising from the Supreme Court's decision are summarised in " Key Issues" below.

The decision is particularly relevant to developers of multi-phase developments authorised by a single masterplan planning permission. The use of "drop-in" applications to authorise changes to a specific plot or plots within a wider masterplan have become a commonplace means of responding to tenant requirements or altering market conditions, but the Supreme Court's decision has profound consequences for this approach.

Whilst the Supreme Court has brought welcome certainty in this area of planning law, their decision also serves as a salutary reminder that overlapping planning permissions will always require particular scrutiny. Projects for which drop-in permissions have already been implemented will need to be reviewed carefully to check that they have not caused future development phases to lose the benefit of an existing planning permission.

We have prepared a briefing note in which we consider the Supreme Court's decision and the practical implications for landowners and developers. If you would like a copy of our full briefing, please contact us.

Key issues

Here are the headline points for developers arising from the Supreme Court's decision:

• The existing legal principles on overlapping planning permissions have been reaffirmed, and uncertainties arising from previous cases have been clarified.
• ...