Hillside in practice

January 26, 2024

Megan Forbes analyses a recent High Court case that has provided guidance on the practical implications of the Supreme Court’s Hillside decision.

The case of R (on the application of Dennis) v London Borough of Southwark [2024] EWHC 57 (Admin) confirms that when applying the Pilkington principle:

The mere inclusion of phasing is insufficient to amount to a clear indication that the consent is severed into discrete permissions;
An amendment making a permission severable is material in planning terms – a Non Material Amendment cannot be used; and
More is likely to be needed than simply saying the permission is severable.

Background

Outline permission (OPP) had been granted for phased redevelopment of the Aylesbury Estate in south-east London.

One of the phase developers applied for detailed ‘slot-in’ planning permission for a phase (doing so to avoid of the limits that would apply to reserved matters under the OPP due to the parameters set by the OPP, including building heights).

The authority worked on the basis in granting the slot in that there was no risk of the benefit of the undeveloped balance of the OPP being lost where the slot in was implemented, because Phase 2B could be severed from the OPP as the detailed Phase 2B consent would not prevent the remainder of the OPP being implemented, thus contrasting to the circumstances in Hillside. The developer submitted a s.96A application in order to ‘formalise’ the severability of the OPP, which was granted on 28 March 2023.

The Claimant, a local resident and campaigner affected by the scheme, successfully argued that:

the amendment was material, and therefore outside of the powers of s.96A TCPA 1990; and
the OPP was not severable when it was granted.

Severability

Rejecting the suggestion that the OPP was already severable, the Judge held that the mere inclusion of phasing in a detailed or outline permission is insufficient to amount to a clear indication that the consent is severed into discrete permissions. Applying Hillside, if a consent is to be severable, it must be expressed unequivocally or in the absence of this, any contra-indications to support severance must be equally clear. Whether a permission is severable is a matter of construction of the consent.

He also noted that the scale of intended severability through the broad brush words used was unclear. The phasing and parameter controls were clearly inconsistent with the grant of a severed permission or collection of separate permissions and instead consistent with the grant of a single integrated planning permission. There was no contra-indication or clear indication that the OPP is severable.

Interestingly, the parties agreed that the effect of the reference to the Design and Access Statement in the operative part of the OPP meant that it only authorised the delivery of phases in the order shown.

Materiality – Use of S.96A

The OPP was held not to be severable before the s.96A amendment as it was a single permission with provisions for phasing. The S.96A had – it was held – the effect of disapplying the Pilkington principle and therefore significantly enlarged the bundle of rights granted by the OPP, thus being a material amendment. The Judge noted his strong reservations about the legality of an amendment to a planning permission inserting language as uncertain as the term “severable”. The parties agreed that if the OPP was not severable, then the addition of the word “severable” was material.

Practical implications

Simply using the words ‘severable’ may be enough, when granting permission to make it severable – to have any practical benefit, the intended scope/scale of the separate permissions being granted needs to be clear though.
Use of s.96A to make a permission severable – making a permission severable (where it is not already) is a material amendment which is outside the scope of s.96A. If s.96A is to be used to formalise the severability of a permission, the language must be clear and certain so as to indicate the extent to which the consent is severable. The insertion of the word “severable” would be insufficient to indicate the extent of severability.
Phased developments are not automatically severable – the Hillside and Pilkington principles apply to both detailed and outlined consents, whether phased or not. Spatially discrete phases do not in themselves indicate severability; planning conditions requiring cohesion across a site, and approved documents showing a clear interrelationship between phases, will likely point towards a single integrated permission.
Unequivocal severability – local planning authorities should express unequivocally where a permission is intended to be severable. In the absence of this unequivocal statement, there must be clear contra-indications pointing to the severability of the consent. If there are no such contra-indications then the permission is not severable. Local planning authorities therefore must be careful to clarify where a consent is and is not severable.
Outline permissions were confirmed to be subject to Pilkington in Pioneer Aggregates – as a practical point, the threshold for the point of no return (physical impossibility of continued delivery) may well be far higher for outline than detailed schemes. This did not form any part of the legal findings in the case and will be fact sensitive in each case, though.