Planning permission – Implementation – Condition in permission requiring commencement of development within five years – Further condition requiring approval of ground levels of building before works commenced – Preparatory works carried out without obtaining such approval – Subsequent application for lawful use certificate in respect of development refused – Whether permission lawfully implemented within five-year period – Whether condition regarding approval of ground levels a condition precedent without which development unlawful – Appeal dismissed
The appellant owned a steeply sloping site in Torquay that was the subject of a full planning permission granted in 1974, subject to conditions, for a development of 19 flats in accordance with approved plans. A condition required the development to be commenced within five years. Another stated that “before any work is commenced on the site”, the ground-floor levels of the building had to be agreed with the second respondent local planning authority. The site was in a conservation area and adjacent to a Grade II* listed building.
Although preparatory works were carried out in January 1978, agreement was not obtained for the ground levels and the development proceeded no further. In 2005, the appellant applied to the second respondents, under section 191(1)(a) of the Town and Country Planning Act 1990, for a lawful use certificate in respect of that development, arguing that the 1974 permission had been kept alive by the 1978 preparatory works.
The certificate was refused by the second respondents and by a planning inspector on appeal. The inspector held that the preparatory works did not constitute a lawful implementation of the 1974 permission owing to the failure to obtain approval for the ground levels before the operations were commenced. He considered that, given the sensitive nature of the site and its extreme topography, the condition regarding approval of ground levels was a condition precedent going to the heart of the permission.
That decision was subsequently upheld by a judge, dismissing a challenge brought by the appellant under section 288 of the 1990 Act. The judge held that: (i) the inspector had been entitled to find that the ground levels went to the heart of the permission; and (ii) a condition that required a particular matter to be approved before the development commenced had the same effect as a formulation that expressly prohibited development before that matter received approval: see [2010] EWHC 3455 (Admin); [2011] 16 EG 83. The appellant appealed.
Held: The appeal was dismissed.
As a matter of general principle, operations would lawfully implement a planning permission only if they were permitted by that permission read together with its conditions, such that operations carried out in contravention of a condition could not be described as commencing the permitted development: FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72 considered. Although there were various recognised exceptions to the general principle, which was not to be applied unduly rigidly where to do so would produce absurd results and run contrary to the underlying purpose or policy of the legislation, none of the exceptions applied in the instant case. For example, development carried out in breach of planning control might be effective to commence development in circumstances where it would be unlawful, in accordance with public law principles, for a local planning authority to take enforcement action to prevent development from proceeding: R (on the application of Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin); [2003] JPL 984 considered. Breach of a condition might not prevent the lawful commencement of development if the condition contravened was not in the nature of a “condition precedent” going to the heart of the planning permission: R (on the application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin); [2005] 2 P&CR 31 applied. However, that was not the case here.
The condition clearly prohibited the commencement of any work on the site before the ground-floor levels were agreed. The wording of the condition, stating that a particular matter had to be approved before development commenced, was equivalent to a prohibition on the commencement of development until the condition was fulfilled: Hart Aggregates applied; Bedford Borough Council v Secretary of State for Communities and Local Government [2008] EWHC 2304 (Admin); [2009] JPL 604 distinguished. It reflected the standard wording used in outline planning permissions to require the submission and approval of reserved matters before the commencement of development. The same form of words should not be given a different meaning in the context of a full planning permission subject to conditions.
The inspector had been entitled to conclude that approval of the ground-floor levels was fundamental to the development permitted and that the condition went to the heart of the planning permission. The approved plans for the development did not define ground levels with sufficient certainty to enable those levels to be determined with precision. The fact that the second respondents had included the condition despite having possession of the approved plans suggested that they regarded the setting and agreement of ground-floor levels as a matter of considerable importance. The matters referred to in the inspector’s decision, namely the sensitive position and steep gradient of the site, indicated why that was so. The condition had been included with good reason and was more than a mere formality or a way of ensuring that the building was constructed in accordance with the plans already approved. The second respondents had been entitled to treat the ground-floor levels as a matter of sufficient importance to justify a prohibition on any work at all commencing on the site before the levels were agreed. The works carried out by the appellant fell foul of that prohibition. That breach of condition prevented the works from being a lawful implementation of the planning permission.
Martin Kingston QC and Hugh Richards (instructed by Wragge & Co LLP, of Birmingham) appeared for the appellant; Paul Brown QC (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
