Friday, 28 January 2011
Lawful implementation of planning permission – another case
Although I have written at length, both publicly and privately, on the issue of so-called ‘conditions precedent’ and the legal effect of a commencement of development without complying with such a condition, I have always taken the view that this issue has not yet been finally resolved, as indeed has proved to be the case, with further challenges coming before the courts on this issue.
The latest is the case of Greyfort Properties Ltd v. SSCLG  EWHC 3455 (Admin), in which judgment was given in the High Court on 7 December 2010. This is a case which was drawn to my attention almost immediately after the Inspector’s decision letter was issued, and I felt at the time that the appellants might be tempted to take the matter to the High Court, as indeed they did.
As I understood the Inspector’s decision, this appeal finally turned on a condition which read - “Before any work is commenced on the site the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing”.
My own view, which I expressed privately at the time, was that this could arguably be a condition which went to the heart of the permission [a view which I understand the appellant in this case would dispute], but there is a second limb to Hart Aggregates, in which Sullivan J (as he then was) made it clear that to be a true 'condition precedent' the condition must also be expressly prohibitive, rather than merely requiring that something be done before the commencement of development.
The relevant passages of Sullivan J’s judgment read:
"57. ...........The 1990 Act draws a clear distinction between development without planning permission and development in breach of condition; see section 171(A)(1)(a) and (b). It is important that that distinction is not blurred by an indiscriminate use of the judge-made term 'condition precedent'."
"58. Going back to first principles, the starting point should be the proposition that there is no scope for implied conditions in a planning permission. If a local planning authority wishes to impose any obligation upon an applicant by way of a requirement or prohibition, it should do so in express terms, because failure to comply with the condition may, ultimately, lead to prosecution for failure to comply with a breach of condition notice and/or an enforcement notice; see sections 179 and 187(A) of the 1990 Act. The need for a local planning authority to spell out any requirement or prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development, but the commencement of any development pursuant to the planning permission."
"62. In my judgment, the principle argued for by the defendant applies only where a condition expressly prohibits any development before a particular requirement, such as the approval of plans, has been met. Condition 10 is not such a condition. If it had been breached some 34 years ago, the effect of that breach would have been to render any restoration in breach of condition, and therefore unlawful. Other activities permitted by the 1971 permission, such as extraction, would not have been rendered unlawful."
[The italics and bold type are mine.] It is these passages (read together) which led me to the view that it is not sufficient by itself that a condition should "go to the heart of the permission" - it is a two-fold test; the condition must also be expressly prohibitive in its wording. Thus a condition which says "Before any work is commenced on the site [X shall be done]" cannot (even it goes to the heart of the permission) be a true condition precedent, whereas a condition which says "No work shall commence on the site [until X has been done]" will (provided it goes to the heart of the permission and is not simply concerned with a matter of detail) be a true condition precedent, failure to comply with which may render the whole development unlawful.
I could see a possible argument that the prohibition might not need to be so starkly prohibitive in its wording as I had proposed, but Sullivan J's words did seem to suggest the need for an express prohibition on the commencement of development without compliance with the condition.
Notwithstanding the apparent incompatibility of the Inspector’s decision with the judgment in Hart Aggregates, Mitting J upheld the Inspector’s dismissal of the appeal. The crucial passage in the judgment is:
 “There is in any event, in my judgment, no material difference between a condition which expressly prohibits development before a particular matter is approved and one which requires a particular matter to be approved before development commences. The effect is the same.”
However, this appears to me to directly contradict the view of Sullivan J in the passages in the Hart Aggregates judgment quoted above. It also seems to overlook the judgment in Bedford BC v. SSCLG  EWHC 2304 (Admin), which followed Hart Aggregates. The appellant, I gather, would in fact deny that the condition in question could even be construed as one which ‘goes to the heart of the permission’, so that it is not a true condition precedent under either of the criteria laid down by Sullivan J in Hart Aggregates.
I understand that the appellant is seeking permission from the Court of Appeal to appeal the recent judgment, and without intending to imply any disrespect of the learned judge’s decision at first instance, I would rather expect that permission to appeal might be granted. That is not, however, to predict the outcome of a substantive appeal if the case does come to be heard by the Court of Appeal. We may yet get a definitive ruling from the Court of Appeal on this troublesome issue. I rather hope that Sullivan LJ might be one of the judges who hear the appeal.
© MARTIN H GOODALL