The strictness of this rule has been affirmed by the Court of Appeal in Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983; [2002] 50 EG 112 (CS). The chances of getting round it, by claiming that the council have waived the condition, or have created a legitimate expectation that the permission would remain in force, are extremely slight: see
Since it expresses the rule in somewhat less stringent terms, the judgment of Ouseley J, given at about the same time in R (on the application of Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin); [2002] 47 EG 148 (CS), should be treated with caution.
For a way in which the rule can, with the passage of time, backfire on the planning authority, see
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Q Work on a development site was started shortly before the date upon which the relevant planning permission would otherwise have lapsed under the five-year rule laid down in section 91 of the Town and Country Planning Act 1990. The council nevertheless contend that the permission has indeed expired because one of the conditions of the grant was not complied with before the work began. With the passage of time, the condition in question now seems to be of little importance in planning terms. How, if at all, does this assist us?
A Hardly at all, unless you apply for a fresh planning permission. A declaration that the old permission is still valid would almost certainly be refused on the ground that you should have made a timely application under section 73 of the Act for a discharge or variation of the condition. The council are relying upon a judge-made rule that says that work commenced in breach of a planning condition cannot be a “material operation” for the purpose of section 56, which partly governs the question of time limits.
The strictness of this rule has been affirmed by the Court of Appeal in Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983; [2002] 50 EG 112 (CS). The chances of getting round it, by claiming that the council have waived the condition, or have created a legitimate expectation that the permission would remain in force, are extremely slight: see No time to waiver Estates Gazette 14 December 2002, p110, where Martin Edwards and John Martin examine the implications of Henry Boot.
Since it expresses the rule in somewhat less stringent terms, the judgment of Ouseley J, given at about the same time in R (on the application of Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin); [2002] 47 EG 148 (CS), should be treated with caution.
For a way in which the rule can, with the passage of time, backfire on the planning authority, see The perils of jumping the gun Estates Gazette 18 January 2003, p117, contributed by Mark Harnett, of Fladgate Fielder.
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PP 2002/78
