Site allocated for housing — Application for development — Earlier outline planning permission for houses — Failure to comply with conditions imposed — Committee wrongly advised on application for further development that earlier permission implemented — Decision based on wrong advice quashed — Application for judicial review granted
This was an application for judicial review of a decision of the first respondents, Oldham Metropolitan Borough Council, to grant planning permission to a developer (the second respondent) for the erection of 120 houses on 4 ha of open land which was the site of a former brick works in Grotton, Oldham, Lancashire. The site was first allocated for development in the Oldham Borough local plan in 1985. In 1990 outline permission was granted for the whole of the site and full planning permission was granted for 30 houses, subject to conditions. In 1992 the council prepared the new unitary development plan for the borough and designated the site for housing, confirming its status under the Oldham Borough local plan. The plan was confirmed in April 1996. The application for planning permission which was the subject of these proceedings was submitted on April 10 1995. The applicants, who lived very close to the site, objected. On May 19 1995 the developer made a further application for renewal of the 1990 planning permission. That application was withdrawn on the basis that works had been commenced on the site purportedly by way of implementation of the 1990 permission. The director of environmental services took the view that the work done by the developer on the site was sufficient to mean that the 1990 permission had been implemented and was alive. His recommendation that the further permission be granted was accepted by the planning committee. The applicants sought judicial review of that decision.
Held The application was granted.
1. By section 56(2) of the Town and Country Planning Act 1990, development should be taken to be begun on the earliest date on which any material operation comprised in the development began to be carried out.
2. The question was whether the development was permitted by the planning permission read together with its conditions. If the operations contravened the conditions they could not properly be described as commencing the development authorised by the permission. They constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful: see FG Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296.
3. In the present case there were three clear breaches of the conditions of the 1990 permission. Prima facie therefore the operations that were carried out on the site could not properly be described as commencing the development authorised by the permission, constituted a breach of planning control and were unauthorised and unlawful.
4. The breaches of the conditions by this developer were the result of the developer’s own failure to do what the permission required in time and there were no special circumstances to bring this case within the exception to the general rule: see Whitley above.
5. Although each of the breaches was venial so that the council might have overlooked them, it was not inevitable that the council would do so and the cumulative effect made it difficult to argue that the development had been begun in compliance with the condition. Accordingly, the advice given to the committee was wrong and the decision had to be quashed.
6. Moreover, the applicants’ delay in pursuing the matter did not cause the sort of prejudice to deprive the applicants of their remedy.
Stephen Sauvain QC and Anthony Crean (instructed by Pearson Williams, of Oldham) appeared for the applicants; Richard Humphreys (instructed by Sharpe Pritchard, London agents for the solicitor to Oldham Metropolitan Borough Council) appeared for the planning authority; Andrew Gilbart QC (instructed by Sharpe Pritchard) appeared for the second respondent developers.
