High Court quashes a decision to amend the description of development under section 96A by inserting the word “severable”

Key takeaways:

• The physical impossibility test in Pilkington and Hillside does not apply where a planning permission can properly be read as severed.
• Whether a planning permission is severable, or a collection of discrete permissions, is a matter of construction.
• Any decision to grant a severed planning permission must be expressed unequivocally. Where that is not done, any contraindications must be equally clear.
• The mere inclusion of phasing provisions in a planning permission is insufficient to amount to a clear indication that it is severed.
• Where a planning permission is not severable, an amendment inserting “severable” into the description of development significantly enlarges the bundle of rights granted by the permission and falls outside the power contained in section 96A of the Town and Country Planning Act 1990.

Last week, Mr Justice Holgate quashed a decision amending the description of development of a major outline planning permission (‘OPP’) for the regeneration of part of the Aylesbury Estate. The OPP provided for buildings ranging from 2 to 20 storeys in height to be built out in phases between 2016 and 2035. The Claimant, who had been a resident of the estate for over 30 years, successfully argued that an amendment inserting the word “severable” was  material and therefore the decision was unlawful. The judgment can be found here.

The Aylesbury Estate was built between 1967 and 1977 as a council estate of around 2,700 dwellings for approximately 10,000 residents, making it one of the largest in Europe at that time. In 2010, the Council adopted the Aylesbury Area Action Plan as part of its statutory development plan, which proposed to redevelop the estate and create a new neighbourhood of 4,200 dwellings over a 15 to 20-year period. Development was to be phased across the area to allow residents to be rehoused.

In 2015, Notting Hill Genesis (‘NHG’) was granted detailed planning permission for phase 1 and the OPP for phases 2, 3 and 4. Prior to the development of phase 2B, the Aylesbury Action Plan was superseded by policies in the Southwark Local Plan (2022) that required, among other things, an uplift in the number of new dwellings. As a result, in July 2022, NHG submitted a “drop-in” application for detailed planning permission for Phase 2B proposing buildings of up to 26 storeys in a bid to deliver the increase in housing then required.

Several months later, NHG submitted a section 96A application to amend part of the description of development in the OPP from “a phased development” to “a severable phased development”. The amendment was said to have been agreed between NHG and the Council in order to “confirm that the OPP is a planning permission comprising severable phases” in the context of the Supreme Court decision in Hillside Parks Limited v Snowdonia National Park Authority [2022] UKSC 30.

On 17 January 2023, the Planning Committee resolved to grant the detailed planning permission sought for phase 2B subject to the grant of the section 96A application. The section 96A application was subsequently granted by a planning officer acting under delegated powers on the basis that the insertion of the word “severable” was considered to be non-material.

The Claim proceeded on two grounds.

Ground 1 concerned the issue of whether the OPP was severable on its true construction prior to the section 96A amendment. The parties agreed that the amendment would have been unlawful if it were found that the OPP did not comprise severable planning permissions.

The Judge accepted that the phasing provided for in the OPP involved spatially different phases but considered that the phasing did not in itself indicate the grant of several separate permissions. Indeed, the provisions of the OPP which required phases 2B and 2C to be built before phase 3 and then phase 4 were considered to be “entirely consistent with the grant of a single, integrated planning permission”.

Because of the variety of ways in which a planning permission might be severed, the Judge emphasised that it was important for any decision to grant a severed planning permission to be expressed “unequivocally”. Where that was not done, any contra-indications said to support severance had to be equally clear.

On the facts, there was no indication that the OPP was severable. The Judge did not find any support in the fact that NHG may build substantially less than the amounts of development permitted by the OPP. There had also been no suggestion that the officer’s report considered the merits of individual phases on the basis that they may be replaced by a materially different “drop-in” application.

Grounds 2 concerned the materiality of the amendment which made the OPP severable. The Judge noted that if that amendment were found to be non-material, then it would effectively avoid the application of the physical impossibility test in Pilkington/Hillside and allow the developer to carry out under a new planning permission a phase which is physically incompatible with the OPP, without losing the right to carry out further phases.

Given that the OPP had been construed as a single planning permission with provisions for phasing, the Judge concluded that an amendment which permitted the phases to be severed “significantly enlarged” the bundle of rights granted by that permission. It followed that there had been a material amendment for the purposes of section 96A and that the Council’s decision was unlawful.

The decision provides important guidance on severability as a means of future-proofing different phases of major development or regeneration schemes. While a planning permission may be severable, it is imperative that the application for and grant of permission specify clearly that the development is severable and on what basis. The same should be apparent from the supporting documentation. Practitioners were also cautioned to consider carefully the consequences of a severable planning permission, in particular as regards time limits.

In addition, the decision has effectively curtailed the use of section 96A as a mechanism to avoid the application of the test in Pilkington/Hillside. It will not be possible to retrofit a description of development in a planning permission that sever phases from one another and facilitates the substitution of otherwise incompatible forms of development. Nor would it be possible to do so through an application under section 73, which applies only to conditions.

Although permission to appeal the decision was refused by the Judge on the papers, it is understood that an application for permission may be made to the Court of Appeal.