by John Martin
The general rule that planning permissions do not subsist, unimplemented, forever is well known. They are subject to time-limits within which the permitted development must be commenced: Town and Country Planning Act 1990, sections 91-93.
In summary, any grant of full planning permission (dependent upon certain exceptions) must be made subject to a condition that the development to which it relates is to be begun not later than the expiration of five years from the date of the permission. A grant of outline planning permission must be made subject to a condition imposing two types of time-limit, namely one within which application must be made for the approval of reserved matters and another within which the development itself must be commenced. In the first case, the time-limit is three years from the date of the outline planning permission and, in the second case, the period is either five years from that date or two years from the date of the final approval of the last of the reserved matters, whichever is the longer.
Two particular points need to be noted: first, if for any reason a planning permission is granted without such an express condition then it is deemed to have been granted subject to such a condition; and, second, the authority concerned may direct longer or shorter periods.
Leaving aside what is perhaps the most obvious reason for seeking to keep a planning permission alive, namely that it may enhance many times over the intrinsic value of the land to which it relates, there are at least two other reasons at present for making heroic efforts to preserve the benefit of an existing planning permission. The first is the current recession and the lack of availability of ready funding to enable many developments to go ahead. The second is the changed status recently given to development plans(1) and the statutory duty now placed on local planning authorities to prepare new district-wide local plans(2). Where a planning permission has been allowed to expire the landowner or developer may well find that his own proposals for the land have been overtaken in the meantime by a specific policy in a new local plan. It has been made clear by the Government(3) that where a proposed development which is inconsistent with up-to-date local plan policies is pursued to appeal and the local planning authority has substantiated this inconsistency in its refusal of permission, the developer will run a serious risk of an award of the local planning authority’s costs against him if he is unable to demonstrate other material considerations to justify making an exception to the policies in the plan.
Where a planning permission is about to expire the landowner or developer is in most cases faced with only two choices: either to seek to renew the planning permission or to find a means of implementing it before time runs out. On the face of it the preferable course may well be to seek to renew; this will bring about certainty, without necessarily triggering financial obligations under related agreements. There is a simplified procedure(4) and departmental guidance advises that such renewal applications should normally be granted, and refused only in limited circumstances(5).
There will, however, always be circumstances where the landowner or developer will have no alternative but to seek to implement the planning permission. For instance, local planning authorities are advised to refuse permission pursuant to an application to renew where there has been some material change of planning circumstances since the original permission was granted. A change in some relevant planning policy for the area in question might well result in the landowner or developer having no choice.
Implementation
Operational development is taken to be implemented on the earliest date at which any material operation comprised in the development is begun(6). “Material operation” is defined to include, for instance, the digging of a trench to contain foundations or the laying of an underground main or pipe to the foundations or any operation in the course of laying out or constructing a road(7).
The purpose of this article is not to consider the nature of the works which are required to be carried out before it can safely be assumed that a planning permission has been implemented; this has recently been covered elsewhere(8). Suffice it to say that the judicial view is that the statutory provisions are benevolent ones which are aimed at avoiding hardship to a developer who is genuinely undertaking the development, and that very little needs to be done to satisfy those provisions so long as that which is done has genuinely to be done for the purpose of carrying out the development permitted by the planning permission(9).
This article’s intention is rather to consider the extent to which operations that are carried out, for one reason or another, in breach of planning control may amount to implementation of a planning permission, so preserving it. In this context there are two relatively distinct lines of judicial authority to consider. In none of the cases is it necessary, fortunately, to go into any great detail over the facts, and in two instances at least the cases have been mentioned in this journal(10).
First line of cases
The first line of authority begins with Kerrier District Council v Secretary of State for the Environment (1980) 41 P&CR 284. Here, full planning permission had been granted for the construction of a bungalow. The main issue arose because the bungalow was constructed with a basement which had never been shown on any of the plans submitted to the local planning authority as part of the planning application. For reasons connected with the purported enforcement of an occupancy condition imposed on the grant of planning permission the divisional court had to decide whether the building operations in question, which clearly did not comply with the planning permission granted in one material respect, could amount to implementation of that permission. The court held that they could and that in this case they did.
(It might be argued that the development in question was substantially that for which planning permission had been granted and that the decision would have gone the other way if some completely different development had been carried out. Nevertheless, the case is clear authority for the proposition that works which amount to a breach of planning control can amount to implementation of a planning permission.)
The second case to consider is Clwyd County Council v Secretary of State for Wales [2] JPL 696. Here, full planning permission had been granted for the carrying out of certain mining operations. The planning permission was due to expire and a formal application for renewal had been turned down by the local planning authority. The developer therefore sought to implement the planning permission before the expiry of the relevant time-limit by carrying out a number of separate activities on the land. The planning permission had been granted subject to certain conditions including conditions to the effect that no mining operations at all could be carried out without adequate fencing being erected and that no blasting could take place until times were agreed with the local planning authority. These conditions had not been met.
In the High Court the most important issue (for the purposes of this article) which had to be tried was the question whether these activities which had been carried out in breach of planning control could be relied upon for the purposes of keeping the planning permission alive.
Forbes J took the view that the conditions could not be regarded as conditions precedent. (This had been argued before him.) He said that where a local planning authority wished to ensure that conditions were to be so regarded it made use of expressions such as “no development shall be carried out until, etc”. The mere words “subject to the following conditions” were not sufficient of themselves to make conditions attached to the planning permission conditions precedent.
His view was that development which involved failure to observe a condition which was not a condition precedent could not be said to be unlawful development. He upheld the argument that the unlawfulness attached not to the development but rather to the failure to comply with the condition. Accordingly, on this ground the planning permission survived. (By implication, however, Forbes J was acknowledging 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 final case in this line is FG Whitley & Sons Co Ltd v Secretary of State for Wales [0] 2 PLR 44. Again, planning permission had been granted for certain mineral extraction works, subject to conditions. The most relevant of those conditions provided that no working should take place except in accordance with a scheme to be agreed with the local planning authority or, failing agreement, as should be determined by the Secretary of State. The developers were unable to reach agreement and, to avoid the permission expiring, carried out works on the site which comprised or included mineral operations.
When this case came before the High Court, Sir Frank Layfield QC, sitting as a deputy judge, similarly had to decide whether works which had been carried out in breach of a condition could still amount to implementation of the planning permission. In his judgment he referred to the decisions in the Kerrier and Clwyd cases. He said that in planning law a firm distinction had to be drawn between development without planning 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 planning permission related and was still lawful; all that was unlawful was the failure to comply with the conditions.
(The Secretary of State had reached the conclusion that the condition amounted to a condition precedent; Sir Frank disagreed and even went on to say that he was not aware of any established category or practice recognised in planning law that comprised “conditions precedent”.)
Resulting principle
Were matters to end there it might be reasonable to conclude that there was a clear rule to the effect that works carried out in breach of a condition attached to a planning permission may nevertheless preserve a planning permission (in terms of implementation) provided that the condition on its true construction is not a condition precedent. This would also appear to accord with the views of the authors of a number of leading works(11).
If such a rule is valid (and this must now be questioned in the light of the second line of authority) for a condition to be construed as a condition precedent for this purpose it must follow, for instance, the form of the conditions considered in the cases of Grampian Regional Council v City of Aberdeen District Council (1984) 271 EG 625 and Jones v Secretary of State for Wales [0] 3 PLR 102. Such conditions are commented upon in paras 24 and 34 of Circular 1/85 — The Use of Conditions in Planning Permissions — and further examples can be found in Appendix A to that circular(12). The essence is that the conditions are negative in their nature and restrict all development under the planning permission (as opposed to some subsequent event such as occupation of resulting buildings) until the matter which is the subject of the condition has been achieved.
Second line of cases
It now becomes necessary to consider the second line of judicial authority which casts doubt upon the validity of such a rule. Again there are three cases; it is the first one, Etheridge v Secretary of State for the Environment (1984) 48 P&CR 35, which sows the seeds of confusion. This was another case which came before the High Court, but on this occasion the planning permission in question had been granted in outline only.
The issue to be decided, on the face of it, was whether development which was commenced without the approval of details was sufficient to preserve the outline planning permission (which otherwise would have been treated as time expired). On the particular facts Woolf J (as he then was) held that approval of details should be deemed to have been given. Accordingly, the planning permission was extant. However, he went on to say, obiter, that development commenced in contravention of any planning condition would be development in breach of planning control and would not suffice to implement the planning permission.
It is interesting to note that this judgment was not cited in the Whitley case. It was, however, cited this year to the Court of Appeal in R v Elmbridge Borough Council, ex parte Oakimber Ltd [1] 3 PLR 3. The facts of this case, and the relevant planning history, are both complicated but again it involved an attempt to keep alive what might be described as the equivalent of an outline planning permission granted under the provisions of the Town and Country Planning Act 1947 in respect of the site of the old Brooklands motor racing circuit at Weybridge. The planning permission was granted subject to conditions, one of which stipulated that detailed plans of the layout of buildings etc had to be submitted to, and approved by, the local planning authority before any development took place. No such submission had previously been made although various works and other operations had been carried out which were alleged to refer to that planning permission.
At first instance Hodgson J had followed the line of the decisions in the Kerrier, Clwyd and Whitley cases. He had declined to accept that the condition was a condition precedent in the true sense and had held that the works carried out, notwithstanding that they were in breach of that condition, amounted to development to which the planning permission related. Accordingly, he had held that the planning permission survived.
He was reversed by a unanimous Court of Appeal, which relied upon the statements made obiter in the judgment of Woolf in the Etheridge case.
On the basis of other reasoning, however, the court was actually able to hold that no development which related to the planning permission had been commenced before the relevant date and so their statements also on the point with which this article is concerned may well be obiter. In fact, Beldam LJ said: “On this reasoning it is unnecessary to consider the interesting argument addressed to the court that development carried out in breach of conditions can be regarded as development to which the permission related and whether, for the purposes of planning permission, conditions can properly be regarded as ‘conditions precedent’. But, if it had been necessary to do so, I would have expressed my agreement in principle with the view of Woolf J in Etheridge v Secretary of State for the Environment.”
The third case is that of R v Elmbridge Borough Council, ex parte Health Care Corporation Ltd [1] 3 PLR 63. A number of questions had to be determined here, including whether the failure by the developer to comply with a specific condition prevented certain works carried out by him from being treated as amounting to implementation of a particular planning permission. The specific condition required that “prior to the commencement of works” the developer should satisfy the local planning authority on the availability of certain land for the provision of sight lines.
It was argued for the developer that, in the light of the first line of authorities, it was not necessary to comply with the condition before commencing operations and that the failure to do so did not in any way prevent the work constituting commencement of development. For the local planning authority it was argued that the condition was a condition precedent and the judge, Popplewell J, accepted this argument. He went on to say, however:
Even if I were wrong about that I entirely agree with the view expressed by Woolf J in Etheridge and the Court of Appeal in Oakimber, namely that development carried out without permission or commencing in contravention of conditions of a permission is not development to which the permission related because it was development carried out in breach of planning control and so not permitted. I do not have to consider whether strictly I am bound by the Court of Appeal in Oakimber or whether what was there said was obiter because I am persuaded by the logic of the argument, even if I am not as a matter of jurisprudence required to follow it.
He went on to add:
If I had to choose between the decision of Forbes J in Clwyd on the one hand and Woolf J and the Court of Appeal on the other I have to say that I prefer the views expressed by the latter to that of Forbes J.
Conclusions
What conclusions therefore fall to be drawn from all this? There are clearly two lines of judicial thinking, although the second line appears to have been expressed largely obiter. (As the House of Lords subsequently refused leave to appeal in the Oakimber case, the statements of the Court of Appeal in that case for the present stand unchallenged.)
There is a clear logic behind the first line of reasoning and this stems from the statements by Lord Lane CJ in the Kerrier case, particularly the following one:
Something being done without permission can connote one of two things. It might mean that no permission has ever been granted at all; or it might mean that permission has been granted but what has been done did not comply with that permission. The fact that something is done without permission in the latter sense does not mean that the permission has to be treated as a nullity.
It seems perfectly fair to say that where a condition attached to a planning permission is a condition precedent in the true sense, works carried out in breach of that condition must be regarded as works done without planning permission. A condition precedent in that sense must operate so as to prevent the planning permission becoming effective until the condition has been complied with. There does not seem to be any judicial argument to the contrary. However, the breach of any other condition must fall squarely within the second limb of Lord Lane’s statement and, on that basis, works amounting to such a breach should still be capable of bringing about implementation of the planning permission.
Lessons to be learned
If the first line of authority is in fact the correct one (and there must now obviously be some doubt about this) there is only one practical lesson for the landowner or developer to learn. If his planning permission is shortly to become time expired and he hopes to preserve it by making a start on the development, it is essential that he allows sufficient time to permit him first to comply with any condition attached to the planning permission which is in the nature of a condition precedent. From the cases cited above (five of which involved attempts to preserve planning permission at a late stage by means of implementation) it must be apparent that local planning authorities will always be ready to challenge the validity of commencement.
Given the second line of authorities, however, a landowner or developer must also now be prepared to be in a position to comply with all other conditions attached to his planning permission within the time which is left to him, or seek to remove them by statutory means(13). Failing this he will be thrown back on the alternative of a renewal application against the background possibly of changed local plan policies and the statutory requirement that the planning application now be determined in accordance with the development plan.
References
(1) See Planning and Compensation Act 1991 section 26.
(2) See Planning and Compensation Act 1991 section 27 and Schedule 4.
(3) See PPG 15: Regional Planning Guidance, Structure Plans and the Content of Development Plans; see also Estates Gazette February 2 1991 at p 98.
(4) See Town and Country Planning (Applications) Regulations 1988 (SI 1988 No 1812) reg 3(4).
(5) See DOE Circular 1/85 — The Use of Conditions in Planning Permissions para 48.
(6) See Town and Country Planning Act 1990 section 56(1) and (2).
(7) See Town and Country Planning Act 1990 section 56(3).
(8) See New Law Journal April 26 1991 pp 571 and 572.
(9) See Malvern Hills District Council v Secretary of State for the Environment (1983) 263 EG 1190 and Thayer v Secretary of State for the Environment [1] 3 PLR 104.
(10) See August 10 p 52, August 17 p 49 and “Legal Notes” August 24 1991.
(11) See Encyclopedia of Planning Law and Practice Vol 2 at p 2-3185 Butterworths Planning Law Service at p c576 and Planning Law Practice and Precedents at p 9016.
(12) See Model Conditions 10, 14, 20, 27 and 37.
(13) See Town and Country Planning Act 1990 section 73.
