Section 93(4) of the Town and Country Planning Act 1990 provides that development carried out after the date by which a condition attached to the relevant planning permission requires it to be carried out shall be treated as unauthorised by the permission. Therefore, if the time limit for commencement of the development is not met, the benefit of the planning permission is lost. Commencement is governed by section 56 of the Act. This provides that that development shall be taken to be begun on the earliest date on which any “material operation” comprised in the development begins to be carried it. It then goes on to define “material operation” for this purpose.
However, a developer faced with a planning permission that is about to become time-expired and anxious to keep it alive by implementing it must be very conscious of what is commonly referred to as the Whitley principle. This is a general principle to the effect that the operations to which a planning permission relates are those that it authorises, not those that contravene its conditions. In other words, operations carried out in breach of condition will not save a planning permission that would otherwise be time-expired. It has subsequently been held at first instance, however, that the principle should only be applied to conditions precedent that “go to the heart of the planning permission”.
In Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] PLSCS 99, planning permission had been granted in 1974 for a residential development on a sensitive site, subject to conditions imposing a requirement for the development to be begun within five years and for agreement of the on site ground floor levels of the building with the local planning authority in writing before commencement of any work on the site. Preparatory works were carried out on site in 1978, but agreement was never reached in the case of the ground floor levels. The development did not proceed.
The court held that the ground levels went to the heart of the planning permission. The condition requiring agreement of them could not be relegated to the category in respect of which breach did not prevent the commencement of lawful operations. Since the condition had not been met before the preparatory works were carried out, the planning permission had not been implemented.
John Martin is a freelance writer
