Claimant granted outline planning permission for development – Conditions precedent to development – Conditions not being met – Work commencing at site – Claimant alleging planning permission remaining valid – Whether development commenced in accordance with permission – Claim dismissed
In April 1993 the defendant local planning authority (LPA) granted to the claimant (LGB) outline planning permission for the development of land at a site on the Isle of Wight, for 60 holiday lodges and a leisure club. It was stipulated that work had to be commenced within 5 years. Conditions attached to the permission stated, inter alia “No works shall commence on site until… fencing has been erected around trees to be retained…” and “a programme of working shall be submitted to the LPA for approval before any operations are commenced on site”. In March 1998 LGB commenced work on the site. The LPA contended that the permision had expired and that, since the conditions had not been complied with, the development had not lawfully begun. The claimant sought a declaration that the permission remained valid and that its effect was to permit the erection of dwellinghouses within Class C3 of the Use Classes Order 1987. It was accepted that operations carried out in breach of a condition could not be relied upon as material operations, capable of commencing the development. The claimant submitted that it was necessary to look at all the circumstances of the case, notably the importance of the conditions and that the breaches were not extensive. Furthermore, that common sense and fairness were to be considered and that a new category of exception to the general principle should be created in the present case.
Held: The claim was dismissed.
The general principle of law was clearly spelt out in Whitley & Sons v Secretary of State for Wales [1990] 2 PLR 44, namely “Are the operations permitted by the planning permission read together with its conditions?… If the operations contravene the conditions they cannot properly be described as commencing the development authorised by the permission”. There may be exceptions to the general principle: see Agecrest v Gwynedd County Council [1998] JPL 325 and R v Flintshire County Council, ex parte Somerfield Stores Ltd [1998] PLCR 336. The categories of exception were not closed. However, both Agecrest and Flintshire were narrow exceptions, unlike the present case. The fact that the LPA only took the point of breach of conditions at a late stage could not amount to waiver or consent to the breach. It was not for the court to exercise some general equitable jurisdiction, in which fairness was the main or only criteria in addressing whether breach of the conditions should bar the works being regarded as commencing development. The conditions had required certain steps to be taken. Those steps were not taken. The works began in breach of planning control and could not constitute commencement of development. Development could not now be carried out under the permission as the time specified had expired.
Anthony Porten QC (instructed by Dutton Gregory, of Winchester) appeared for the claimant; Mark Lowe QC and Ian Albutt (instructed by Glanvilles Damant, of Newport, agents for the solicitor to Isle of Wight County Council) appeared for the defendants.
Sarah Addenbrooke, barrister
