Planning permissions must be implemented within strict time limits unless expressly agreed otherwise with the Planning Authority. One symptom of these difficult economic times is that certain planning permissions may not be capable of being built out until the economy improves. It seems sensible, therefore, to safeguard the planning permission by implementing the permission so that, in time, it can be fully built out.
At a glance, it is recognised that very little work may actually be required to commence development and thus safeguard the planning permission. For example, in Scotland the Court has previously held that the digging of a trench for foundations was enough to constitute commencement of development. But what if some of the planning conditions require certain actions prior to commencement of development? Can development lawfully commence in breach of such a condition?
The English Position
A brief history
The case of Whitley v Secretary of State for Wales (1992) 64 P&CR 296 is the first in a line of cases to discuss whether or not a development can lawfully commence in breach of a condition. Whitley held that if an action contravenes such a condition, that action cannot be described as commencing development:
"The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful."
Following Whitley is the case of R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 Admin. Hart qualified Whitley somewhat. Hart held that:
- The planning condition must be phrased as an express requirement or prohibition that makes it clear that the actual start of the development is conditional on the condition being satisfied; and
- The condition must go to the heart of the planning permission.
Perhaps in an attempt to settle the law, the recent case of Greyfort Properties v Secretary of State for Communities and Local Government [2011] EWCA Civ 908 appears to have adopted almost a hybrid approach between Whitley and Hart.
Greyfort Properties attempted to keep alive a planning permission issued in 1974 for 19 Flats in Torquay. Alongside a condition to commence development within a time limit, Condition 4 of Greyfort Properties' planning permission required ground floor levels of the building to be agreed with the Local Planning Authority before commencing work.
In 2005 Greyfort Properties unsuccessfully applied for a Certificate of Lawful Existing Use of Development. The Planning Authority argued that development had not lawfully commenced and that the planning permission had expired. Condition 4, a condition considered to be at the 'heart of the planning permission', had not been complied with, meaning that the permission had not been lawfully implemented.
Greyfort is of importance to developers in England and to Planning Authorities:
- The Whitley principle, noted above, is approved such that if an operation contravenes a condition it cannot be properly described as commencing the development authorised by the permission. The Court of Appeal here appears to favour the more general approach taken in Whitley in respect of the wording of conditions. Hart appeared to restrict Whitley by requiring Planning Authorities to be explicit with the wording of their planning conditions.
- Hart is generally approved in that the condition must be one which goes to the heart of the planning permission. Breaches of pre-commencement conditions dealing with more trivial matters are less likely to be caught.
The Scottish position
Doonin Plant Ltd v Scottish Ministers [2011] CSOH 3
On 20 November 2001, Doonin Plant Ltd were granted planning permission for a change of use of one of their buildings from a bottling plant and distribution centre to a transport operating centre and administrative headquarters, subject to various conditions. Doonin Plant began operations in a way that they thought complied with the permission. The local planning authority, unsatisfied that the conditions had been complied with, served a breach of condition notice on Doonin Plant which was followed by an enforcement notice. The local authority argued that planning permission had expired on the basis that Doonin Plant had not lawfully commenced development in time. Lady Clark, deciding in favour of Doonin Plant, stated:
"In my opinion, the case law and principles derived from Whitley on which the respondents relied deal with conditions which are framed in a different way and have a different impact upon whether or not a development can be commenced or initiated in breach of a particular specified condition. The planning authority in making and framing conditions in respect of any planning permission may frame conditions in such a way that prevents the commencement of the development unless the conditions are fulfilled."
Lady Clark continued:
"Not every condition, unless so expressed, will give rise to the result that the development is unlawful because it has never been commenced in accordance with a planning permission or conditions."
Although the facts in Doonin are very different to Greyfort, this recent Scottish decision may be used in the future to suggest that a more restrictive interpretation of the meaning of "suspensive" conditions is required than the approach advocated in Greyfort.
Conclusion
Notwithstanding the very different facts that Doonin and Greyfort were decided upon, there may be scope for arguing a difference of interpretation between the English approach and the Scottish approach to pre-commencement conditions, with the Scottish approach perhaps favouring the developer. Both Greyfort and Doonin, despite their subtle differences, should act as an important reminder to developers of the importance of thorough scrutiny of planning conditions and ensuring a clear programme for discharge as soon as a planning permission is granted.
To view the decision in Greyfort Properties v Secretary of State for Communities and Local Government click here.
To view the decision in Doonin Plant Limited v Scottish Ministers click here.