Wednesday, 3 August 2011

Conditions precedent - a further thought

When I reported on the first instance decision in Greyfort Properties ["Lawful implementation of planning permission – another case" : 28 January 2011], I expressed the hope that we might get a definitive ruling from the Court of Appeal on this troublesome issue. Regrettably, the Court of Appeal seems only to have succeeded in further muddying the waters, so that it will be more difficult in future to identify a ‘true’ condition precedent than before.

On reflection, it seems to me that the key to this problem may lie in an alternative approach which I suggested in a lecture on this subject to members of the Planning Inspectorate a couple of years ago.

Rather than attempting to decide whether or not the condition in question was a ‘true’ condition precedent, we should perhaps take a broader view and ask ourselves this question - Is the development which is being or has been carried out the development which was authorised by the planning permission? This is the same question one would have to ask oneself if it were alleged that a building had been built in the wrong place or was larger or higher than it should have been. As always, this is a matter of fact and degree in every case. I suggested that any breaches of condition (not just so-called ‘conditions precedent’, but any condition attached to the planning permission) ought to be considered in that context. Is development in breach of the condition or conditions in question so different, in the form and manner in which it has been carried out, from what was authorised (assuming proper compliance with that condition or those conditions) that it is not within the scope of the planning permission?

This would necessarily involve consideration not only of the condition itself in the context of the permission as a whole, but also the nature and consequences of the breach. To use the formulation adopted by Sullivan J in Hart Aggregates, does the condition (and also the breach) “go to the heart of the permission” ? If not, then this breach of condition will not have rendered the development as a whole unlawful (although there is, of course, a breach of planning control comprising the breach of the condition itself, which may require enforcement action limited to that particular breach of condition). It follows that if, on this basis, enforcement action cannot be taken against the development as a whole, then (in accordance with Hammerton and Prokopp, applying a principle originally derived from Whitley) the commencement of that development must be taken to have been lawful.

If one looks at the matter in this way, it is unnecessary to trouble oneself with the wholly judge-made concept of “conditions precedent”. Nor is it necessary to determine whether or not the precise wording of any requirement to comply with the condition in question before the commencement of development is actually prohibitive in its effect (so as to make it a ‘true’ “condition precedent”). Notwithstanding the judgment of the Court of Appeal in Greyfort Properties, merely requiring that something is to be done “before development commences” might not necessarily be enough to make it a condition that “goes to the heart of the permission”. Furthermore, even if worded in the form of an express prohibition, failure to comply with the condition in question might not take the development outside the scope of the permission if the condition deals only with some minor detail.

At the end of the lecture I speculated as to whether it might take the intervention of the Scottish Court of Session (as it did in East Dunbartonshire v. SSS in relation to ‘colourable implementation’) to catch and shoot the hare which was set running so long ago by Woolf J’s obiter remark in Etheridge. Or could we hope (I asked) that a strongly constituted Court of Appeal will re-examine the issue afresh, taking on board the points made, first by Woolf LJ in Whitley, then by Ouseley J in Hammerton and by Buxton LJ in Prokopp, and more recently by Sullivan J in Hart Aggregates? Unfortunately, the Court of Appeal did not do that in Greyfort Properties, and so we shall have to await a further case in which this whole issue is re-examined yet again. But I have not given up hope that the time may yet come when we can bury the prickly concept of “conditions precedent” once and for all.


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