Whitley revisited - the result

In a post on Tuesday, 17 December 2013, I drew attention to an application for judicial review in the High Court ( R (Ellaway) v. Cardiff CC ) which had the potential, if it had succeeded, to bring about a significant change in the accepted position regarding pre-commencement conditions, otherwise known as ‘conditions precedent’.

I had hoped to be alerted when judgment was handed down, but in the event this judgment escaped my attention when it was given on 27 March 2014 ( [2014] EWHC 836 (Admin) ). As I had rather expected, the claim was dismissed.

It was not disputed that by the time development commenced on site, the developer had applied for the discharge of all the pre-commencement conditions, although the Council had not yet determined those applications. There was some argument as to the procedural propriety of the means by which the Council dealt with the applications for discharge of the conditions, but the work undertaken on site was carried out in strict conformity with the details provided by the developer in support of the applications for discharge of the conditions. This was exactly in accordance with what has long been accepted as an ‘exception’ to the general rule in Whitley, and this exception is derived from the Whitley judgement itself. There was clearly no basis on which the Council’s action could be challenged on this ground.

The claimant had sought to argue that a matter of this kind ought not to be dealt with in that way, but should be the subject of an application for retrospective planning permission under section 73A. However, Wyn Williams J did not consider that there is any basis to conclude that the Whitley principle and the exceptions to that principle cannot co-exist with Section 73A of the 1990 Act. There is no authority which begins to suggest the contrary. Further, there can be no doubt now, if there ever was following the judgment in Whitley, that the Whitley principle itself is regarded as “a clear legal principle of general application” – see Greyfort Properties Limited v SSCLG [2011] EWCA Civ 908. It is equally clear that the acknowledged exceptions to the principle are also founded upon clear principles of general application.

The possible difference of approach required in this case, as argued by the claimant, arose from the fact that this was EIA development, and (so it was argued) the need to comply with European directives required a more rigorous procedure to be adopted. Nonetheless, it was accepted on behalf of the claimant that European law does not prohibit the grant of retrospective planning permission – i.e. the grant of planning permission after the proposed development has been initiated prior to the discharge of pre-commencement conditions. (See the decision of the Court of Appeal in R (Ardagh Glass Ltd) v Cheshire West Council [2010] EWCA Civ 172.) However, the claimant submitted that European law demands that such a grant should be made only exceptionally and, in effect, only in the context of an application made under Section 73A of the 1990 Act.

Both the Council and the developer strongly disputed that a grant of retrospective planning permission must be made only in the context of section 73A of the 1990 Act. Furthermore, they both submitted that neither the Council nor the developer had acted inconsistently with the relevant principles of European law.

To put it shortly, Wyn Williams J found that the Whitley principle is entirely consistent with the aims and objects of the Directive. The rationale of the exception is to avoid unnecessary formality and wasted time and expenditure. The terms of the exception are clear and self-contained. It is obvious when the exception will apply. The fact that this exception is the product of judicial decision-making, as opposed to Parliamentary enactment, does not mean that it is unpredictable, unclear, imprecise or uncertain. In truth both the Whitley principle itself and the exception relied upon by the Council are clear and their application in individual cases is entirely predictable. The fact that the Court of Appeal has acknowledged that the exceptions to the Whitley principle may not be closed does not mean that the acknowledged exceptions are unpredictable or uncertain.

In the circumstances, the court did not consider it necessary to deal with the issue of delay, which might very well have prevented the grant of relief in this case if the claimant had made out the legal grounds to support her claim.

So we can all breathe a sigh of relief, and continue to rely on the Whitley principle and its acknowledged exceptions. The added ‘European’ dimension made no difference in this case, and there would seem to be no basis for arguing that the discharge of conditions should be dealt with differently in such a case compared with normal procedure. The time for an EIA assessment (where this is required) is much earlier, at the planning application stage. It has been established that the approval of reserved matters after a grant of outline permission can also give rise to a requirement for a separate EIA at that stage, but it is difficult to envisage circumstances in which an application for the discharge of pre-commencement conditions (‘conditions precedent’) could give rise to such a requirement, even where the discharge of those conditions is retrospective following the commencement of development.

© MARTIN H GOODALL