One Source Dec 19 Deputy Director

Tower Hamlets Dec 19 Updated 600

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Developer fails in bid to rely on planning permission granted in 1967

A developer cannot rely on a 52-year-old planning permission now physically incapable of completion, a High Court judge has ruled.

HHJ Keyser QC said in a case brought by Hillside Parks against Snowdonia National Park Authority that subsequent development made it impossible to complete the Balkan Hill scheme in line with permission granted by the former Merioneth County Council in January 1967.

Permission had been granted for 401 homes on a 29 acres site and at various times some had been built according to variations granted.

Hillside contended it was entitled to complete the remaining parts because the authority is bound by a High Court order made in 1987 that the development “may lawfully be completed at any time in the future”.

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The authority argued that the 1987 order was not binding because subsequent development meant it was impossible to comply with the 1967 planning permission.

In May 2017 the authority wrote to Hillside to say that developments carried out in accordance with later planning permissions, “mean it is now physically impossible to implement the original planning permission further”.

It had sought counsel's opinion and received advice that the 1967 permission “is no longer capable of being implemented further”.

The authority required Hillside to stop all works “until the planning situation has been regularised” and threatened enforcement action if this was not done.

Hillside put further development on hold with 41 homes complete and six under construction.

In Hillside Parks Ltd v Snowdonia National Park Authority [2019] EWHC 2587 (QB HHJ Keyser QC rejected the authority’s contention that the 1987 order was wrong but said its declaration “obviously does not mean that, regardless of how the facts and the law may change or develop at any time thereafter, the development permitted by the January 1967 permission would necessarily be capable of lawful completion in perpetuity.

“Events might occur that would render it physically impossible to complete the development ‘substantially in accordance with the rest of the master plan’ or the law might change.”

The judge noted that among developments on the site, a row of terraced houses had been built across the positions shown on the master plan for two distinct rows of houses and an access cul-de-sac between them, an estate road has been constructed along the line of part of a row of terraced houses and ran through the positions of another house and garden.

He concluded: “In my judgment, the development permitted by the January 1967 permission cannot now be completed lawfully in accordance with that permission.

“It is physically impossible to complete the development fully in accordance with the January 1967 permission…this is not a matter of minor deviations from the detail in the master plan: the state of affairs existing on the ground in the north-west part of the site means that the remaining development there cannot be carried out and that further development will require new design and fresh permission.”

Mark Smulian

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