Dennis v Southwark: Warning against planning permission amendments in stages – Landlord and Tenant – Leases

The High Court delivered its verdict yesterday, for council tenant and housing campaigner, Aysen Dennis, in her case against the London Borough of Southwark. Ms Dennis is a long-term resident of the Aylesbury Estate, which has been undergoing major redevelopment since 2015. She challenged Southwark Council’s decision to allow housing provider Notting Hill Genesis to amend the planning permission, making it easier to push through changes to the original ‘masterplan’ without applying for new planning permission.

What is the background to Dennis vs Southwark?

Aylesbury Estate dates back to the 1960s. In 2010, Southwark Council submitted a “master plan” to redevelop the site over 20 years to increase the number of houses and flats to allow for a mix of social and private housing.

In 2014, Southwark partnered with Notting Hill Housing Trust (which later became Notting Hill Genesis) to deliver the remainder of the estate’s phased development. As part of this, Southwark granted Notting Hill Genesis “planning permission” in August 2015, which included Phase 2 of the redevelopment, which is due to take place between 2016–2025.

However, in 2022 Southwark Council unveiled a new ‘Southwark Local Plan’ which stated that the number of new homes originally planned for the redeveloped Aylesbury Estate in the 2015 preliminary planning permission needed to be increased.

This led to Notting Hill Genesis applying for a non-substantial amendment (under section 96A of the Town and Country Planning Act 1990) to the original outline planning permission – often referred to as a ‘drop-in’ application. Southwark granted the application in March 2023. This amendment added the word “severable” to the planning permission. Treating the outline permission as ‘severable’ would allow Notting Hill Genesis to carry out, under the new planning permission, a stage of development (such as changing the height of the building) that is physically incompatible with the permission granted by the framework permission without losing the right to carry out further phase according to the framework permit.

The effect of the Pilkington principle and Hillside Parks Ltd Vs. Snowdonia National Park Authority

Ms Dennis argued that the amendment to tighten the framework planning decision was in fact “significant” and as such outside section 96A. That’s what she claimed “The purpose and effect of the amendment is to change the bundle of rights conferred by an outline planning permission so as not to apply the Pilkington principle (Pilkington v Minister for the Environment (1973) 1WLR 1527).”

The Pilkington principle can arise where two or more planning permissions have been granted in the same area and development has been carried out under one of those permissions. If this (later) development made it physically impossible to carry out the development approved by another (earlier) consent, this (earlier) consent can no longer be relied upon.

Ms Aysen also argued that as the original outline planning permission was not strict, a completely new planning permission was needed for the entire project as suggested by the Supreme Court judgment in Hillside Parks Ltd v Snowdonia National Park Authority 2022.

The planning permission provided for a phased development and Southwark and Notting Hill Genesis (as an interested party) argued that each phase was individually permitted by the permission so that the permission was strict in practical terms. They were also looking into that
“the amendment made under section 96A was only intended to confirm that position expressly by consent.”

The decision of Mr. Justice Holgate in Dennis v. Southwark

The judge, Justice Holgate, dissented in Southwark and Notting Hill Genesis. He said that the framework zoning decision remained the only permission, while to be strict it would have to be granted “several separate permissions”. As such, it could not be changed through a frivolous application.

Regarding Pilkington’s principle, he said: “This case is not concerned with determining in what circumstances Pilkington would prevent reliance on advance planning permission or, more generally, on progressive planning permission. The only question is whether Southwark and Notting Hill Genesis are correct in asserting that, in terms of interpretation, the framework planning decision was in any event by the revoked permit and that the amendment to s.96A was simply made to expressly confirm that position.’

Granting Ms Dennis’s challenge, Mr Justice Holgate added that he had “major reservations about the legality of the planning permission amendment which simply inserts language as vague as the bare term “severable”. There was no indication of the extent to which the intentional zoning was allegedly interrupted. Many different alternatives could be devised for large-scale development.”

What are the consequences for developers who want to change the zoning?

The decision is important to developers, lenders, landowners and potential buyers as there are several ‘layered’ permissions on the site that are inconsistent.

It follows the recent High Court judgment in Hillside Parks Ltd v Snowdonia National Park Authority, which clarified that planning permission for land is not strict unless the permission states that it is.

This decision takes this a step further by stating that in this case, s96A cannot be used to apply gravity retrospectively.

As the Center for Public Interest Law, which represented Ms. Aysen, stated: “This ruling should serve as a warning to developers who ignore historic plans.”

Any interested party who is considering submitting an application for a zoning change as part of a gradual development with a “layered” building permit should ensure that they take professional legal advice before acting.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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