Use it, don’t lose it - How to Retain Planning Consent

If you own land with the benefit of planning permission but, maybe due to market conditions, don’t want to carry out any development now, how can you preserve the consent and ensure it remains effective.

This is a particularly tricky area of the law!!

Implementing planning consents

Planning consent must be implemented within three years from the date it was granted unless expressly stated otherwise, it is implemented by what is called, the carrying out of a “material operation”, briefly they include the following works:-

1. Any work of construction in the course of the erection or demolition of a building.
   
   
2. The digging of a trench to contain foundations, or part of the foundations of a building.
   
   
3. The laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph 2 above
   
   
4. Any operation relating to the laying out or constructing a road or part of a road

Previously there was some doubt as to whether such works could be carried out simply to keep a consent alive with no intention to actually carry out the development, but recent case law has held that the intention of the person carrying out the work is irrelevant provided the work has been done in accordance with the planning permission.

Conditions precedent and the “Whitley Principle”

It was decided in Whitley and Sons v Secretary of State for Wales (1992) (Court of Appeal case) that where works have begun without a condition precedent (pre-commencement condition) being fully discharged those works would not constitute a lawful implementation of the consent to prevent it from lapsing and would result in an unauthorised development. This has become known as the “Whitley Principle”.  However, where a developer commences operations in breach of such a condition precedent then provided he submits the details for approval before the consent expires and those details are approved this can save the consent from lapsing.

Two recent cases concerning the issue of conditions precedent are considered below.

Bedford Borough Council V Secretary Of State For Communities & Local Government (2008)

In this case the conditions in question were:-

1. “Before the development is commenced a landscaping scheme to include all hard surfaces and earth mounding shall be submitted for approval by the District Planning Authority, and all planting thereby approved shall be carried out to their satisfaction by a date not later than the end of the full planting season immediately following the completion of that development”

The reason given for the imposition of this condition was “to enhance the appearance of the proposed development”

2. “Details of all boundary treatments are to be submitted to and approved by the District Planning Authority, prior to the commencement of development”

The reason given for this condition was “to ensure a satisfactory standard of development”

In this case, the Judge, HH J Waksman, concluded that these conditions were not condition precedents as:-

1. They did not expressly preclude development.
   
   
2. More interestingly, the Judge agreed that the Inspector was right to consider whether the conditions went to the heart of the planning permission and the Judge reasoned that landscaping was not central to the conversion of the barn and were not separate works which of necessity must be done or approved before the building could sensibly start.

R (P Casey (Enviro) Limited) V Bradford MBC (2008)

In this case planning permission was granted in 2001 for quarrying of limestone to continue and thereafter for the site to be restored by landfill for a period of 10 years.

The two conditions in question were (in summary):-

1. Restoration of the quarry had to be begun before 14 March 2006
   
   
2. Such use could not commence until approval of a landscaping scheme

The developer purchased the site on 8 November 2005 and submitted an application to discharge the landscaping condition.  On 21 February 2006, an officer of the LPA approved the scheme.  Development was commenced in February 2006 and the LPA subsequently confirmed (at the developer’s request) that the permission had been lawfully implemented.

In May 2006, a member of the local residents’ action group challenged the LPA’s decision to approve the landscaping scheme (there was a defect in the application not picked up by the LPA) and this challenge was upheld by the High Court.  As a consequence the works of implementation were retrospectively rendered unlawful.

The developer took the line that the original approval of the landscaping scheme had been quashed leaving the application to discharge this condition still extant and purported to supplement it with further details which could then be approved.  The LPA advised the claimant that it was considering enforcement action and issued a planning contravention notice.  The developer sought Judicial Review of the LPA’s decision not to consider approval of the amended landscaping scheme.

From reading this case, whilst it was accepted that the condition was drafted to expressly “prevent use”, no argument was taken as to whether the condition was a condition which struck to the heart of the permission.  Instead, the argument put forward by the developer was that it would be irrational or an abuse of power for the LPA to take enforcement action to prevent development pursuant to the permission from proceeding.

Considerations which must be taken into account by the LPA when deciding whether or not take enforcement action

Development which is carried out in breach of planning control should not, in itself, justify a Local Planning Authority (“LPA”) taking enforcement action.  Firstly the decision to take enforcement action must accord with public law principles.  The decision must not be:-

1. “Wednesbury Unreasonable” -  (Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB223  “ a decision so unreasonable that no reasonable person could contemplate”
   
2. Irrational - taking irrelevant considerations into account, or ignoring relevant considerations leading to an irrational result.
   
   
3. In breach of natural justice.
   
   
4. In breach of its obligations under the Human Rights Act 1998.
   
   
5. Ultra Vires (not within the powers available to the LPA).

Secondly, it must be expedient to take enforcement action.

Conclusion

If a pre-commencement condition is drafted expressly to prohibit development one must ask the following questions:-

1. Does the condition go to the heart of the permission? If the condition is not central to the development then following the Bedford Borough Council case (above) it could be argued that the condition is not a condition precedent falling within the Whitley Principle.
   
   
2. Assuming there is a breach of planning control, is it expedient to take enforcement action?
   
   
3. Would the decision to take enforcement action be lawful on public law grounds?

If the condition is a condition precedent which comes within the Whitley Principle then any breach of that condition would result in the whole development being unauthorised if it is not fully discharged before the consent expires.   However, the consent can still be saved if a developer commences operations in breach of a condition precedent but applies for approval and that approval is subsequently granted so the condition in question is fully discharged before the consent expires.  The crucial point here is that the developer must apply for the approval before the consent expires.  However, this is risky because if that application is refused and the consent then lapses the intended development would no longer be authorised by the consent and any works already carried out would (subject to paragraphs 2 and 3 above and the time limits for taking enforcement action) be open to enforcement action. 

Those that want to preserve the benefit of the grant of permission must ensure that all conditions precedent falling within the Whitley Principle are fully discharged before any commencement of the development and that that commencement occurs before the time limit on the consent itself expires.

The information contained in this article is for general information purposes only and should not be relied on in isolation without seeking further legal advice that is specifically applicable to your circumstances. To discuss any aspects of this article further, please contact Marco Mauro.