‘Whitley’ principle to be re-visited

A potentially very interesting case on pre-commencement conditions - R (Ellaway) v. Cardiff CC - is being heard in the High Court today and tomorrow, with judgment expected early in the New Year, following permission having been given by HH Judge Curran QC on 27 September 2013 on a renewed application after initial refusal on the papers.

On 29 June 2010, Cardiff granted a full planning permission for a waste incinerator and associated plant and other works. There were a number of pre-commencement conditions attached to the permission (otherwise known as ‘conditions precedent’) requiring the developer to obtain approvals from the council to certain matters before development commenced under the permission. Applications for such approvals under the pre-commencement conditions constituted “subsequent applications” under Reg. 2(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations.”). There was no challenge by way of judicial review to the actual grant of permission, whether in relation to the EIA Regulations, or in respect of Habitats Directive.

The case raises a point that has been explored on a number of previous occasions, namely the extent to which (and, if so, how) a commencement of development without compliance with pre-commencement conditions can be retrospectively validated. It is clear from what Woolf LJ (as he then was) said in Whitley & Sons v. Secretary of State for Wales and Clwyd County Council (1992) 64 P. & C.R. 296 that it does not matter if development commenced prior to the approval of such matters, provided that application for the necessary approvals was made before the permission would otherwise have expired if it had not been implemented. Furthermore, it does not matter that actual approval of such details is issued even after that date, provided that the works actually carried out do conform with the details as subsequently approved.

It seems that the claimants are seeking to go behind this ruling, and are arguing that a development commenced without compliance with pre-commencement conditions can only be validated by a retrospective planning application under section 73A. They are arguing that the current development is wholly unlawful and are seeking judicial review of the council’s failure or refusal to take enforcement action against the development, which is now well advanced. Leaving aside the fact that the council, in its reasonable discretion, decided that it would be inexpedient to take enforcement action (a decision which, if not wholly unassailable, would be very difficult to overturn on Wednesbury grounds), the claimant would appear to have a very high hurdle to surmount when one looks not only at Whitley but also at various more recent judgments on ‘conditions precedent’, principally Hart Aggregates and also Hammerton and Prokopp. Further support for the proposition that some flexibility should be allowed, so as to avoid an absurd result that runs contrary to the purpose of the legislation, can also be derived from Rastrum Limited v. Secretary of State [2009] EWCA Civ. 1340 and Greyfort Properties Ltd v. Secretary of State [2011] EWCA Civ. 908.

The issue of delay has also been raised in the present case, and may well be significant in view of the advanced stage that has already been reached in the construction of the development.

In giving permission in this case, HH Judge Curran QC had considerable reservations as to the Claimant’s likelihood of success on the first three grounds on which the application for permission was renewed. However, he thought it would be wrong to characterise the case generally as hopelessly unarguable, and the contention, in particular, that the process adopted by the council amounted to an impermissible extension or addition to any previously-recognised exception to the Whitley principle might, he felt, be arguable (although for the reasons forcefully put forward by counsel for the defendants, with which your humble scribe fully agrees, the prospects of success even on this ground must be extremely doubtful).

A fourth ground, in respect of the Habitats Directive, was in His Honour’s view unarguable. The assessment was on its face, and in substance, merely a screening assessment, and not an “appropriate assessment” and for that reason no obligation, statutory or otherwise, arose to consult the public or to give reasons for not doing so. Permission was therefore refused in respect of that ground. His Honour also refused permission to apply for relief in the form of a mandatory order requiring the council to issue an enforcement notice.

It is entirely possible that the current claim could be dismissed on grounds of delay alone, in which case the court might feel it unnecessary to go into the other issues canvassed at today’s hearing. It is equally possible that, even if the substantive issues are dealt with in the judgment, the judge may find it necessary to do no more than apply the well-established principles that can be derived from the judicial authorities mentioned above. There is, on the other hand, an outside chance that the section 73A point (taking a narrow view of Whitley) might succeed, and this would make for a very interesting and potentially far-reaching decision, although a trip to the Court of Appeal would be almost inevitable in such circumstances.

Nonetheless, when one looks at the prospects of the case, one can only hope that the claimant managed to get a protective costs order!

© MARTIN H GOODALL