Claimant granted planning permission for development – Subject to time-limit – Defendants contending permission lapsed – Intention to carry out development – Claimant seeking declaration that necessary works had begun in time – Whether test of subjective intention of developer applied – Claim allowed
The claimant company bought a gatehouse, known as Slough Lodge. It sought planning permission to demolish the existing house and to build another, together with a detached garage, on the site. The defendant district council refused to grant permission. Following an appeal against that decision, an inspector granted planning permission, subject to certain building conditions and subject to the requirement that “the development should begin not later than five years from the date of this letter”. Accordingly, work was required to begin before 4 July 1993. In the period between 1988 and 1993, the claimant ran into financial difficulties. During 1991 and 1992 plans were made to carry out the development. However, those plans did not proceed because of the claimant’s financial difficulties. In mid-1993 a quotation obtained for the work was accepted and work duly commenced on 30 June 1993.
By October 1993 work was temporarily suspended and did not recommence until July 1997. Those works also ceased, and a dispute arose between the claimant and the defendant council, which contended that the original planning permission had lapsed because the necessary intention to complete the development was lacking. The claimant sought a declaration that the necessary work had commenced before 4 July 1993. The council accepted that works were carried out, but they maintained that there was no genuine intention of carrying out the development. They contended that a developer cannot be deemed to have carried out “material operations”, as required by section 56 of the Town and Country Planning Act 1990, unless, at the time it begins the relevant works, it does so with the intention of completing the development. The issue therefore was whether there had to be a subjective intention on the part of the developer, at the time the original works were carried out, to complete those works.
Held: The claim was allowed.
The test was an objective one. That objective test was satisfied by the court, first, in considering whether the work had been done in accordance with the relevant planning permission, and, second, whether it was material, in the sense of not being de minimis. It was a question of fact and degree for each case. To imply a subjective intention would prove difficult both in terms of definition and in deciding how intent was to be established; in particular, when the land was sold or passed on after the initial work was completed. There was no doubt that the works carried out at Slough Lodge during June and July 1993 were done in accordance with the planning permission and were works comprised in the development. It was not suggested that the works were de minimis. The necessary work had begun by 4 July 1993. The principles of East Dunbartonshire Council v Secretary of State for Scotland [1999] 1 PLR 53 applied.
Robin Purchas QC and Douglas Edwards (instructed by Fennemores, of Milton Keynes) appeared for the claimant; Robin Green (instructed by the solicitor to South Buckinghamshire District Council) appeared for the defendants.
Sarah Addenbrooke, barrister
