Planning permission granted subject to conditions – Developer carrying out works on roundabout – Applicant claiming works failing to constitute implementation of planning permission – Whether planning permission extant – Council refusing to serve enforcement notice for works carried out by developer after alleged expiry of planning permission – High Court dismissing application for judicial review of council’s decision
In March 1991 C applied to Alyn and Deeside District Council, the then relevant planing authority, for planning permission for outline planning permission for a 296,027 sq ft retail centre on land between Chester Road and Bretton Road, Broughton Park, near Chester. In May 1991 a traffic and highway improvement report was submitted to the district council, which was approved in June 1991. On October 18 1991 planning permission was granted subject to, inter alia, condition 11, that prior to the commencement of the development a study of the report on the projected traffic generation and highway effects and implications of the development was to be submitted for approval and, condition 3, that planning permission be implemented within five years. On the same day agreements under section 106 of the Town and Country Planning Act 1990 were executed between the district council and C.
In August 1993 C commenced the construction of a roundabout. In March 1997 the applicant, the owner of a number of existing stores in the area, requested that the council consider making an enforcement notice against the works recently carried out by C. It was claimed that condition 11 attached to the 1991 permission had not been complied with prior to the commencement of works on the roundabout, which therefore were not legally capable of constituting a commencement of the development and, accordingly, that planning permission had expired in October 1996 under condition 3 with the result that the further works which C was carrying out were unauthorised development. The council decided not to consider taking enforcement action against the development, concluding that the May 1991 report had complied with the terms of condition 11, even though there was no approval from the district council, and that therefore the planning permission had been implemented and was extant. The applicant sought judicial review of the council’s decision.
Held The application was dismissed.
1. It was implicit in article 24 of the GDO that a grant of planning permission was not complete until there was an application for approval and a notice of decision. There was no record of an actual application for approval under condition 11 and there was no record of a decision being made or communicated to C. Therefore, there had been a failure to comply with the requirement of condition 11 before the road works were carried out.
2. However, the general principle that operations carried out in breach of a condition in a planning permission could not be relied on as being capable of commencing development, had to be applied with commonsense and with regard to the factors of the particular case. Condition 11 had in substance been complied with by the March 1991 report which had been approved. All that was missing was the formality of a written application and written notice of approval. The work had been in conformity with the plans approved by the council, and had been carried out with the full knowledge and co-operation of the local planning authority and the highway authority. Accordingly, it would have been unreasonable for the council to have decided that the planning permission had not be implemented: see FG Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296 and Daniel Platt Ltd v Secretary of State for the Environment [1997] 1 PLR 73, considered.
Robin Purchas QC, Peter Village and James Strachan (instructed by Pitmans, of Reading) appeared for the applicant; David Holgate QC and Timothy Mould (instructed by the solicitor to Flintshire County Council) appeared for the respondents; Christopher Lockhart-Mummery QC and David Elvin (instructed by Gouldens) appeared for DS Property Developments Ltd, an interested party.
