Development — Legitimate expectation — Outline planning permission granted for residential development subject to conditions — Building work suspended following recommendation to amend conditions — Claimant seeking council’s approval of conditions precedent — Council taking view that planning permission lapsed — Whether council estopped from denying development commenced within time limit — Town and Country Planning Act 1990
In 1994, the defendant council granted conditional outline planning permission for a residential development of 315 houses. The claimant acquired the land and applied to have one of the conditions removed. In August 1995, an amended planning permission was issued, subject to several conditions precedent. Without complying with the conditions, the claimant commenced building works and between 1995 and 1999 constructed around 64 houses.
Following concerns over the council’s conduct in relation to the grant of planning permissions, the council informed the claimant that: (i) the council were seeking advice as to the status of the 1995 planning permission; (ii) the development that had already occurred was in breach of planning control; (iii) the claimant should desist from further development; and (iv) the claimant could apply for retrospective planning permission for those houses already built, which the council would deal with expeditiously.
The claimant withdrew its 1999 application and sought the council’s approval of the conditions precedent. The defendants refused, on the ground that the planning permission had lapsed because the development had not commenced within five years of the date of the outline planning permission (2 August 2000).
The claimant sought a declaration that the development had commenced prior to 2 August 2000. Alternatively, the claimant sought a declaration that: (i) the council were estopped from denying that the development had commenced prior to that date; or (ii) it had a legitimate expectation that the council would treat the development as having commenced within the time limit.
Held: The application was dismissed.
1. In order to be considered a specified operation, so that a planning permission was kept alive, building works must have been lawfully executed and not breach any conditions: FG Whitley & Sons v Secretary of State for Wales [1992] 3 PLR 72 applied.
2. The exception to that rule, introduced in Agecrest Ltd v Gwynedd County Council [1998] JPL 325, was based upon the need for flexibility in the way conditions precedent could be approved by local authorities. That exception had been introduced in the circumstances of a less comprehensive planning code, and should now be confined to its own particular facts. Unless it could be established that an Agecrest agreement had given rise to a legitimate expectation, from which it would be an abuse of power for the local planning authority to resile, it was not now possible to bypass the statutory code.
3. The statutory code expressly provided that a local planning authority could modify a condition if it was appropriate to do so. A significant degree of flexibility and common sense was built into the statutory code contained in the Town and Country Planning Act 1990, which ensured that the interests of all parties were taken into account at the appropriate stage. The House of Lords had now reaffirmed that town and country planning was not a private matter for agreement between developers and local planning authorities. The courts should be very slow to permit extra-statutory flexibility or extra-statutory agreements whereby conditions need not be observed: R (on the application of Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8; [2002] 10 EG 158 (CS) referred to.
4. The present case fell squarely within the macro-political field, in the sense that the development of the site was a matter of concern to the wider public and those wishing to promote alternative sites. The claimant had no expectation, legitimate or otherwise, that it would be allowed to proceed with development without compliance with the relevant conditions.
David Elvin QC and Timothy Morshead (instructed by Marrons, of Leicester) appeared for the claimant; Mark Lowe QC and Jonathan Clay (instructed by the solicitor to Bassetlaw District Council) appeared for the defendants.
Eileen O’Grady, barrister
