Lawful implementation

I am still getting instructions from people who are in dispute with planning authorities as to whether or not a planning permission has been lawfully implemented and, if not, whether the planning permission has lapsed. Clearly there are still a lot of planning officers out there who are not up to speed with the various judicial rulings on this issue.

I have written a lengthy paper on this subject which was the subject of a lecture I gave to the enforcement group of the Planning Inspectorate at their annual conference a couple of years ago, but it is far too long to reproduce here. To put it as briefly as possible, it works like this:

First as regards an outline permission, there is no getting round the rule that you must apply for approval of all reserved matters within the stipulated time limit (usually three years, but it can vary – read the permission). (See now the Court of Appeal decision in Rastrum Ltd v. SSCLG [2009] EWCA Civ 1340).

Assuming you have got over that hurdle or have a full permission, you need to carry out a material operation within the time limit stipulated in the planning permission (previously 5 years, now more usually 3 years, in the case of a full permission, or within 2 years after the approval of the last of the reserved matters in the case of an outline permission, but again it can vary – so look at the permission).

What causes potential problems is the issue of compliance with those conditions which require compliance, or appear to do so, on or before the commencement of development (often referred to as ‘conditions precedent’). This is where many planning authorities get it wrong. In practice, failure to comply with a so-called ‘condition precedent’ will rarely result in the entire development being unlawful, and in most cases there will be no question of the permission having lapsed (provided of course that a material operation was actually carried out). A commencement of development which might have been unlawful at the time will in many cases be retrospectively validated by subsequent events.

There are three leading authorities which confirm this – Whitley & Sons v. SSW, Hammerton v. LUL Ltd (as approved by the Court of Appeal in Prokopp v. LUL Ltd) and R (Hart Aggregates) v. Hartlepool BC. The principles to be derived from those three cases can be summarised in this way:

(1) If the condition merely required that something be done on or before the commencement of development (as distinct from expressly forbidding the commencement of development before compliance with the condition), then commencement was not unlawful on that ground.

(2) Even if the condition expressly forbade the commencement of development before compliance with that condition, commencement in breach of the condition would still not have been unlawful unless the condition ‘went to the heart of the permission’. In other words, the condition would have to relate to some fundamentally important aspect of the development (or of the way in which it was to be carried out), and not merely be concerned with the approval of some minor detail.

(3) If a condition meeting both of the above tests (a ‘true’ condition precedent) required further details (other than reserved matters) to be approved before the commencement of development, making a start before those matters were approved would still not render the commencement of development unlawful, provided that an application for such approval was made no later than the date on which the permission would otherwise have lapsed. It does not matter whether the approval of those details was obtained before or after those works commenced provided that they did in practice comply with the details as subsequently approved. Nor does it matter that approval was granted only after the date on which the permission would have lapsed, provided that application for that approval was made before that date.

(4) Even if commencement of development was potentially unlawful under (3) above, the development will still not be unlawful if the planning authority could not lawfully take enforcement action against the development as a whole, either because to do so would be unreasonable (in the Wednesbury sense) or an abuse of power, or because the development had become lawful under the 4-year rule. In this case, the commencement of development is to be regarded as having been lawful, so that the entire development is therefore lawful (which incidentally means that any conditions attached to the planning permission which remain to be complied with are still enforceable – a point which has worried planning officers unnecessarily in the past).

These points will cover the vast majority of cases, so that it will be rare indeed for the commencement of development (and therefore for the development as a whole) to prove to have been unlawful, and so the planning permission will not have lapsed in these circumstances. Cases like Leisure GB v. IoW Council and Henry Boot Homes v. Bassetlaw DC were exceptional, and depended largely on their own facts, and earlier cases, such as Etheridge, Oakimber and Elmbridge can no longer be regarded as good law. Those cases do not detract in any way from the general application of the four points listed above. Nor does the obiter dictum of Lord Scott in Sage, which I have seen quoted on a number of occasions, have any relevance in this context.

Finally, it will not be necessary in most cases to obtain a formal discharge of these conditions (although it is common practice to do so). So the mere absence of a piece of paper showing that the LPA has discharged the condition does not mean that the condition has not been complied with.

I usually find that a robust letter from me to the LPA is enough to sort out problems of this sort (explaining the judicial authorities in somewhat greater detail than I have been able to do in this brief note), but if it really becomes necessary, an application for an LDC should resolve the matter. An appeal against the refusal of a certificate will usually result in an award of costs against the Council in cases of this nature.

© MARTIN H GOODALL