Does breaching a pre-commencement condition prevent implementation?

The recent High Court case of R (Howell) v Waveney District Council [2018] EWHC 3388 is a helpful reminder that breaching a condition going to the “heart” of a permission renders implementation of that permission unlawful.

There has been a series of cases considering the effect of breaching a condition on implementation:

1. Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296

Woolf outlined that works that contravene true conditions precedent cannot be taken as lawfully commencing development. This became known as the Whitley principle.

2. R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin) 

This case set out that in order to consider whether the Whitley principle applied (and whether the effect of the breach made the development unlawful) one had to consider:

• how the condition was phrased; and
• the effect of the condition in the context of the permission (i.e. does the condition go to the heart of the permission so that a failure to comply would make the development unlawful?)

3. Bedford Borough Council v The Secretary of State for Communities and Local Government and Aleksander Stanislaw Murzyn [2008] EWHC 2304 (Admin)

This case confirmed that it is necessary to examine whether a condition is a true condition precedent, so as to engage the Whitley principle.

As established in Hart, one needs to examine how the condition is worded, with the paradigm example of a true condition precedent being a negatively worded condition of “no development shall take place until…”

One then needs to consider the context of the condition. Here landscaping and boundary treatment were not central to the development of a barn conversion – breach of such conditions would therefore not render the development unlawful and so the permission remained alive.

4. Greyfort Properties Ltd v SSCLG [2011] EWCA Civ 908

In this case there was a breach of a condition relating to plans of the ground floor levels. The Court held that this fell squarely within the Whitley principle – the condition prohibited development and it went to the heart of the permission.

5. R (Howell) v Waveney District Council [2018] EWHC 3388

In this case aviation details were submitted late. The Court held that the details did not alert the local planning authority to anything they had not previously been aware of, and thus the condition did not go to the heart of the permission.

There was also a breach regarding the lack of an archaeological investigation. The Court determined that such investigation was unnecessary but in any event the breach did not go to the heart of the development, and thus would not render implementation unlawful.

Summary

Therefore, if you have commenced development and are in breach of a condition, you may not have effectively implemented the planning permission. Thus there is a danger that the permission could lapse.

You will need to determine whether the condition you have breached goes to the heart of the permission. To do so, it is necessary to examine the wording of the condition and its effect in the context of the permission as a whole.

If you conclude that the condition may well go to the heart of the permission, then implementation of the permission would be unlawful. In such circumstances, you will need to ensure that you obtain discharge of the condition prior to the expiry of the permission.  If you do not you run the risk of the local planning authority taking enforcement action.