The case of R (Dennis) v LB Southwark [2024] EWHC (Admin) (Dennis) is the first High Court case which grapples with the practical implications of the Supreme Court’s decision in Hillside Parks Ltd v Snowdonia National Parks Authority (Hillside). For a refresher on the Hillside judgement, see our insight published here.

Dennis may prove useful in giving further practical guidance around the approach to ‘drop-in’ applications, more specifically in the context of multi-phase permissions. The key finding from Dennis is that developers may have limited scope to obtain retrospective changes to planning permissions to specify that the permission is ‘severable’.

In this insight we introduce the case facts and main learnings from the case and the High Court decision.

Background

In Dennis, the claimant made an application for Judicial Review against a decision by Southwark Council to grant an s.96A non-material amendment (NMA) to an Outline Planning Permission (OPP). The NMA sought to insert the word ‘severable’ into the description of development authorised by the OPP.

It was argued that if the permission was not already severable, then the decision to sever would be a ‘material’ one, as it would have the potential to significantly alter the final form of the overall development. As such the decision to approve the NMA was unlawful.

An additional argument by Dennis was that, as the OPP was not granted on a ‘mix and match basis’, it could not be seen as severable. The overarching argument was that, a phased permission does not automatically render it ‘severable’, and that an entirely new planning permission would be needed for the entire scheme, as suggested by the judgement in Hillside.

Southwark Council disagreed with Dennis, and stated that the OPP should be interpreted as ‘severable’ in any event, and the insertion of the word “severable” was merely by way of caution. They contended that the amendment was made to allowimplementation of a drop-in permission for development within one of the phases, which would be inconsistent with what the OPP had granted.

The judgment

Mr Justice Holgate, in considering the appeal, disagreed with Southwark Council and the developer, Notting Hill Genesis. He stated that the OPP remained a single permission, whereas to be severable, there would have to have been a grant of several separate permissions.

He found that “on a true construction, the OPP was not severable prior to the s.96a amendment”. In his reasoning, Holgate determined that using s.96a to insert the word “severable” to the description of the development would “significantly enlarge the bundle of rights granted by that permission”. It followed that “this was a material amendment of the OPP for the purposes of s.96a of the Town and County Planning Act 1990”.

Holgate tackled the implications of previous case law, and noted that “to the extent that the amendment…severed the OPP, it had the effect of dis-applying the Pilkington principle, e.g. it made it unnecessary to apply the physical impossibility test to a future material departure from the development authorised by the grant of the OPP”.

Overall, the judge determined that Southwark Council had acted beyond its power by granting the application to update the OPP to explicitly provide that the permission granted is ‘severable’. In any event, Holgate commented that merely inserting the word “severable” would be too uncertain in order to be overcome the decision in Hillside.

What do we learn from the Dennis case?

The ruling in Dennis is important to developers, prospective purchasers, landowners and lenders, where there are several layered permissions across a site which are inconsistent (within the meaning of Hillside).

Hillside clarified that planning permission to develop a plot of land is not severable, unless the permission specifies that it is. However, the ruling in Dennis takes this one step further, by stating that merely by inserting the word “severability” into the description of development by NMA cannot be used to retrospectively apply severability where the permission is not severable in its nature.

The key takeaways from Dennis are as follows:

• Hillside applies as much to outline permissions as it does to full permissions
• care is needed to the word ‘severable’, and simply inserting the word into a description of a permission or development does not automatically render it severable
• phasing alone does not connote severability e.g. it is not a ‘given’ that a phased permission is severable
• retrospectively serving a consent is likely to be considered ‘material’.

Conclusion

The case of Dennis provides an insight into how the Courts are willing to deal with issues of ‘severability’, and provides judicial confirmation that s.96a applications cannot be used to retrospectively apply severability to planning permissions for multi-phase developments. In this context, “severability” was to treat a planning permission as having separate free standing parts. It is only where this is the case, that Pilkington and Hillside does not apply depending on the nature of the severance.

Whilst the decision in Dennis seems to close the door on the use of s.96a to retrospectively render planning permissions ‘severable’, it should be noted that the same issues around ‘materiality’ do not apply to s.73 applications. After all, the amendment in Dennis was by way of securing ‘severability’ rather than adjusting the permission so building it out would not be materially incompatible with the drop-in application.

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