Summary
Planning permissions are granted subject to a condition (deemed if not actually included) that development must be begun within a specified time and (since 2004) usually within three years. If a developer wants to prevent expiry of its planning permission but does not want to actively proceed with the development, works to implement the permission need not be extensive. Development is to be taken to be begun at the earliest date on which any "material operation" comprised in the development begins to be carried out, which can include digging trenches, laying underground mains or pipes or the foundations of a building.
In the recent case of Greyfort Properties v Secretary of State for Communities and Local Government ([2011] EWCA Civ 908), the Court of Appeal rejected an attempt by a developer to use a planning permission granted 37 years ago to build 19 flats in Torquay. The case is the latest in a long line of case law considering what needs to be done to initiate a development. It also covers the closely linked question of what conditions must be discharged for a permission to be validly initiated.
Facts
Greyfort Properties had obtained planning permission in 1974. Development had to be implemented within five years. Greyfort contended that access work carried out in January 1978 amounted to commencement and that the planning permission had been kept alive (and therefore that a fresh application would not be needed).
The case turned on the wording of a condition which read - "Before any work is commenced on the site the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing". The planning inspector's view was that this was a condition that needed to be discharged before any work was commenced on the site. It amounted to a true condition precedent, because ground floor levels were fundamental to the authorised development (rather than merely being a minor component, such as a detail of external finish of the building). As this had not been complied with, the access works had been carried out in breach of the planning condition and the works did not amount to commencement of the development.
The inspector's decision was upheld by the High Court. Greyfort appealed. The Court of Appeal agreed with the previous rulings. Although preparatory works relating to access were carried out within the five-year time limit, these works did not implement the planning permission, because the ground levels condition had not been satisfied.
Commentary
Preserving planning permissions
Developers frequently find themselves wanting to preserve hard won planning permissions where the permission is for development that is currently not commercially viable, but they want to retain the permission for when the market improves.
This case is a useful reminder that it is not just a matter of physically commencing development before the end of the three-year period that is important, but that pre-commencement conditions must also be dealt with before commencement of any works. It may take several months for pre-commencement conditions to be approved by the local planning authority (and in some instances discharge of condition could even be the subject of environmental assessment). Discharge of conditions may also require the co-operation or approval of other consultees, so may not be a simple or swift process. The developer should at least apply for the approval prior to expiry of the time limit as this may be sufficient to preserve the possibility of arguing that the permission remains implementable. Any developer sitting on a planning permission should not wait until the last minute to implement it and should consider the requirements of pre-commencement conditions carefully.
Identifying a true condition precedent
There have been a number of key cases on identifying true conditions precedent. The case of Whitley & Sons v Secretary of State for Wales and Clywd County Council ([1992] 64 P & CR 296) established the following principle (known as the Whitley principle):
- When reading the planning permission together with the conditions, is the development (as a whole) permitted by the planning permission and therefore lawful (ie have all "true" conditions precedent been complied with)?
- If the development does not comply with the conditions, it is a breach of planning permission and therefore unauthorised and unlawful for planning purposes.
Limited exceptions to the Whitley principle apply. In R (Hart Aggregates Ltd) v Hartlepool Borough Council ([2005] EWHC 840 (Admin)), the judge identified a three-stage test to decide whether a development is unlawful:
- Has there been a breach of condition?
- If yes, does the Whitley principle apply (ie is the effect of the breach of condition something which makes the whole development unlawful)?
- If yes, do any of the exceptions such as irrationality, abuse of power by the council in taking enforcement action or compliance in substance, apply?
When applying this test, one needs to consider whether the condition is phrased as an express requirement or prohibition, its effect when read in the context of the planning permission as a whole and whether it goes to the "heart of the planning permission" (so that a failure to comply makes the entire development unlawful).
For the Whitley principle to apply, the condition needs to make it clear that the actual start of the development is conditional upon that condition being satisfied, ie the condition must be a "true" condition precedent.
The importance of this latest decision on conditions precedent is that it makes it clear that whilst (in accordance with Hart Aggregates) a true condition precedent must both prohibit development without compliance with it and must also go to the heart of the permission, it is not necessary that the wording itself should be expressly prohibitive. If the condition is essentially prohibitive in its effect then it is still capable of being a true condition precedent.