An article which appeared just over a year ago discussed generally the difficulties which a landowner or developer can face in the present climate where his planning permission is about to expire. It highlighted in particular the uncertainty then surrounding the question whether operations which are carried out, for one reason or another, in breach of planning control may nevertheless amount to an implementation of a planning permission, so preserving it.
There have since been further developments on the judicial front which suggest that the question has now been resolved in a way which offers very little comfort to landowners and developers.
The purpose of the following article is to consider those developments and to draw a final conclusion.
In the months which have elapsed since my earlier article, the recession has strengthened its grip and the prospects for any revival in the property development market seem even bleaker. Many more planning permissions granted during the last of the “heady days” will be on the verge of becoming time-expired and more landowners and developers will be faced with the decision of whether to seek to implement them by carrying out the minimum of necessary works.
Where the decision to do this is taken, a serious problem arises if there are conditions attached to the particular permission to which the landowner or developer at that stage has been unable to comply. Natural inclination may well be towards flouting those conditions, but, in the meantime, local planning authorities have, as a result of the Planning and Compensation Act 1991, acquired new enforcement remedies, including the ability to serve breach of condition notices and to issue injunction proceedings under a specific statutory power.
My earlier article demonstrated that there were then two relatively distinct, but conflicting, lines of judicial authority to be considered. I began by referring to what I described as the “first line of cases”, which ended with the decision of the High Court in F G Whitley & Sons Co Ltd v Secretary of State for Wales [0] 2 PLR 44. Those cases (albeit not involving any decision of the Court of Appeal at that stage) appeared to establish very firmly the principle that, save where the condition in question amounted to a condition precedent in the true sense, works carried out in breach of a condition attached to a planning permission could nevertheless suffice to implement that planning permission and so preserve it. (I also pointed out that this accorded very much with the views of the authors of a number of leading works.)
I then identified three separate decisions (which I referred to as the “second line of cases”) which ended with the decision of the High Court in R v Elmbridge Borough Council, ex parte Health Care Corporation Ltd [1] 3 PLR 63. These included a decision of the Court of Appeal, though on the issue in question the statements of the Court of Appeal were largely obiter. The view expressed judicially in these cases was the development carried out in breach of a condition attached to a planning permission could never have the effect of implementing that permission.
My conclusion at that stage was that, while a condition precedent in the true sense must always operate so as to prevent the planning permission becoming effective until the condition had been complied with, there was nevertheless doubt as to whether a landowner or developer also needed to be in a position to comply with all other conditions attached to the planning permission in the time which was left to him if the was seeking to preserve the permission by implementing it. (The safe course, however, would always be to fulfil all the conditions attached.)
Two of the decisions in the second line of cases were reported well after the decision of the High Court in Whitley. The Court of Appeal subsequently – in Staffordshire Moorlands District Council v Cartwright (unreported) – had to deal with the issue again. Earlier this year an appeal against the decision of the High Court in Whitley was heard by the Court of Appeal (shortly to be reported in [2] 3 PLR). These are the further developments.
It becomes necessary at this point to summarise in slightly greater detail the facts of the Whitley case. Put midly, the situation of the developers was an unfortunate one and, in his judgment in the Court of Appeal, Parker LJ was critical both of the conduct of the local planning authority and of the Secretary of State. Full planning permission had been granted in 1973 for the carrying out of certain mining operations. It had been granted subject to a number of conditions, including ones to the effect that no working should take place other than in accordance with schemes agreed with the local planning authority or, in default of agreement, to be determined by the Secretary of State.
The developers had purchased the site in 1976, paying a price which reflected the value of the planning permission and thereafter sought to agree the necessary schemes with the local authority. There was considerable delay on the part of that authority and it finally decided to reject the schemes very shortly before the planning permission was due to expire in 1978.
The developers applied urgently to the Secretary of State for his approval of the schemes (with less than one month left). Not surprisingly, the time-limit expired before any decision from the Secretary of State was received.
There was no prctical alternative for the developers but to commence mineral operations on the site before the expiry date, and this they did. The operations which they commenced were limited and ceased shortly thereafter, but it was accepted on all sides that the works in question were, subject to the issue before the High Court and the Court of Appeal, sufficient to constitute the commencement of development prior to the expiry of the planning permission.
No enforcement action was taken by the local planning authority in relation to those 1978 works and, after a period of four years, that development became immune from enforcement.
Finally, in 1982, the Secretary of State approved the schemes (which were largely in the form originally submitted to the local authority) and in 1983 work was resumed on the site in accordance with those schemes and as a continuation of the 1978 operations.
At that point the local authority took enforcement action in respect of the 1983 works. The developers appealed against the enforcement notice and made a separate application for planning permission. Their appeal, and the application, were ultimately rejected by the Secretary of State in accordance with the recommendations of his inspector in 1988. They then challenged this decision in the High Court.
At first instance, Sir Frank Layfield QC, sitting as a deputy judge, and following two earlier decisions of the High Court, held that the planning permission granted in 1973 had been validly implemented by the 1978 works and so had survived. He said that in planning law a firm distinction had to be drawn between development without permission, on the one hand, and failure to comply with conditions, on the other. Development in breach of a condition was still development to which the permission related and was still lawful; all that was unlawful was the failure to comply with the condition. (In his judgment, Sir Frank was not prepared to accept that the conditions in question amounted to conditions precedent and even went on to say that he was not aware of any established category or practice recognised in planning law which comprised “conditions precedent”. However, in the earlier decision in Clwyd County Council v Secretary of State for Wales [2] JPL 696 – another of the first line of cases – Forbes J had, by implication at least, acknowledged that operations which were carried out in breach of a true condition precedent would not cause the planning permission in question to be treated as having been implemented.)
The developers appeal to the High Court was therefore allowed.
Leave was granted to appeal to the Court of Appeal, but the Secretary of State decided not to proceed further. Subsequently, however, the local planning authority – which had not appeared in the High Court – served notice of appeal and was then granted leave to appeal. In that way, the case came before the Court of Appeal earlier this year.
The sole issue for the Court of Appeal was whether the developers had lost the benefit of the 1973 planning permission to carry out mining operations as a result of their failure to comply with the conditions to which the permission was subject. Counsel for the local planning authority referred to the decisions in the second line of cases and the further (unreported) decision of the Court of Appeal in Staffordshire Moorlands District Council v Cartwright – where the court had followed the principle set down in the second line of cases – and said that their effect was that the Court of Appeal in the present case had no alternative but to allow the appeal by the local planning authority and restore the decision of the Secretary of State.
He contended that a planning permission can be implemented only for the purposes of complying with both express and deemed conditions containing time-limits by a development which is not carried out in contravention of planning control. Alternatively, he contended that the conditions in question attached to the 1973 planning permission, properly construed, took effect as conditions precedent such that a failure to comply with their terms prevented the lawful implementation of that permission.
It was interesting to note that the leading judgment of the Court of Appeal was given by Woolf LJ (as he then was), who had been the judge at first instance in Etheridge v Secretary of State for the Environment (1984) 48 P&CR 35, the earliest of the second line of cases.
Woolf LJ considered that the second contention did not add anything to the first and that it was not necessary or helpful to try to determine whether the conditions in question were probably capable of being classified as conditions precedent. His reasoning for this can clearly be seen from the following quotation from his judgment, which also states his general view on the issue before the court:
As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask a single question: Are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing with a development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission deemed subject to a condition requiring the development to begun by a specified date, it could have been referring to development other than that which is authorised by the permission.
The provisions of section 41(1) of the 1971 Act are now to be found in section 91(1) of the 1990 Act and they read as follows, to the extent that they are material:
91 – .(1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, deemed to be granted, subject to the condition that the development to which it relates must be begun not later than the expiration of:
(a) five years beginning with the date on which the permission is granted, or as the case may be, deemed to be granted; or…
(Emphasis supplied.)
It seems clear that the decisions within the first line of cases were based upon the premise that, provided works were carried out which related to and fell within the description of the development (as set out in the relevant planning permission), those works did not necessarily have to accord with the conditions attached to the planning permission for this purpose.
Woolf LJ, on the other hand, and other members of the Court of Appeal before him, took a much stricter view and construed the statutory provision to mean that works carried out under a planning permission would never qualify as “development to which it relates” unless carried out in compliance also with the conditions. This constitutes a totally different approach and possibly ignores the fact that separate (and now increased) remedies are available to deal with the element of unlawfulness which in any event is likely to flow from the breach of the conditions. (The further consequence of his statements is that, in the context of conditions attached to planning permissions, there is, in effect, no difference between a condition and a condition precedent. While his views on the main issue were directly opposed to those of Sir Frank Layfield at first instance, each appears to be of the opinion that conditions precedent are unknown in this area of planning law.)
Woolf LJ, having stated this general principle, was clearly not happy to allow his decision to rest upon it given the facts of this particular case, although he acknowledged that, unless he could distinguish the second line of cases and the later judgment of the Court of Appeal in Staffordshire Moorland District Council v Cartwright, he would have to allow the appeal and reinstate the decision of the Secretary of State.
On the facts he found that there were two obvious differences between the Whitley case and the earlier cases. In Whitley the developers had, in fact, obtained the approval required by the conditions attached to the planning permission before any enforcement action was taken by the local authority. Furthermore, the operations which had become immune from enforcement action had taken place prior to what would otherwise have been the date of expiry of the permission. He asked the question whether it mattered that the approval necessary for compliance with the conditions was obtained after that date, when operations had been commenced prior to that date which complied with the condition and those operations, furthermore, were immune from enforcement action. He concluded that it did not, mentioning in particular the likelihood that there would be many situations where, although a developer had made a timeous decision to apply for approval, that approval – through no fault of the developer – might not be obtained until after the expiration of the time-limits for implementing the permission.
He stated:
In the absence of express provision of the sort contained within section 42 [of the 1971 Act] in the case of permissions other than outline permission, I take the view that it can accord with the intent of the legislation if the approval is obtained after the expiration of the time-limits as long as the application has been made before the specified time-limits and either the operations which have taken place are immune from enforcement or the approval is obtained prior to enforcement action.
He continued:
If the operations can be and are the subject of enforcement action the position is different, since in the context of enforcement proceedings the question of whether an approval, and if so what approval, should be given can be decided by the Secretary of State, the Secretary of State using if necessary his powers to grant a fresh planning permission.
He held, therefore, that in the present case the developers’ appeal to the Secretary of State against the enforcement notice should have been allowed. The application for approval of the schemes and the commencement of operations had been made before the date of the expiry of the planning permission, those operations had become immune from enforcement action and the approval had been obtained before the commencement of any enforcement action. (This was also the unanimous decision of the whole court.)
Woolf LJ did, however, go on to say:
I should also make it clear that the approach I have sought to identify is not intended to be a charter to developers to ignore conditions which are intended to be complied with before a planning permission is implemented. If it is not already clear, I make it absolutely clear now that if a developer does not comply with a condition he can have enforcement action or any other available action taken against him. The only consequence of the approach indicated in this judgment is when the merits of the enforcement proceedings come to be considered, it is necessary to take into account the situation as it exists at that time and, in particular, whether or not at that time any approval required by the condition has been obtained.
The consequence of this particular finding, therefore, is that the question of whether planning permission has been implemented in these circumstances has to be tested by examining the situation in an enforcement context by considering whether enforcement action is possible and, if it is, leaving the outcome to be determined in the enforcement proceedings.
What practical conclusions are developers to draw from this in terms of their day-to-day operations? The first line of cases now clearly has to be disregarded, as has the purported distinction in planning terms between a condition and a condition precedent. Where the only certain method of keeping a planning permission alive is by seeking to implement it, a landowner or developer will now be seriously exposed if the necessary works are carried out in breach of any condition attached to the planning permission.
The only possible saving is likely to be where the breach amounts to a failure to obtain a specific approval. In these circumstances it is essential that the landowner has both carried out the required works and applied for the specified approval before the expiry of the time-limit for implementing the planning permission. Even then one further requirement has to be satisfied if the planning permission is to be regarded as having survived; approval has to be granted either before any enforcement action is taken in respect of the works or in circumstances where the works have become immune from enforcement. (The new immunity period of 10 years makes the latter of limited value).
All in all, the preferred course in such circumstances must now be to seek an express renewal of the planning permission before it becomes time-expired despite the risk of some intervening change in relevant planning policy.
