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Planning permission may not be the nest egg you think it is

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Posted by Rebecca Mushing on 09 June 2011

Rebecca Mushing - Planning Solicitor
Rebecca Mushing Solicitor

The question whether development has been lawfully begun is still perhaps one of the grey areas in planning law. We recently advised on a situation where planning permission had been obtained for change of use from a pub to build a substantial house together with two further detached dwellings with associated garages and provision of a new access road.  

The main house was meant to be occupied as the principal home and the intention was to sell the permission for the two separate dwellings to the highest bidder, as a "nest egg" for pension purposes. 

The planning permission contained 10 conditions all of which were of a standard nature. For example Condition 3 stipulated that: "the samples of bricks must be submitted to and approved by the local planning authority before the development is commenced".

Condition 4 required  "...elevations on the proposed garages to be submitted to and approved by the Local Planning Authority before development commences ". All the conditions had to be satisfied prior to development taking place. 

The main dwelling house was built and occupied for over 4 years. However, the two separate dwellings were not built, despite the fact that they fell within the same planning permission as the main dwelling. At the time, this was not felt to be a problem as planning permission had been implemented and was alive for the purposes of developing the two further separate dwelling houses.

No record of approval

Approximately ten years later the owners, wanting to take advantage of a buoyant market, decided to sell off the adjoining plot of land with planning permission for the construction of two separate detached dwellings with garages and a new access road. The money raised from the sale of this site would go towards the owner’s pension. However, it transpired that after this 10 year period, there was no record of approval having been sought to satisfy the conditions precedent. 

This led to various enquiries with the local planning authority which resulted in it questioning whether the development had been lawfully commenced and thus whether indeed the planning permission was still alive (bearing in mind that the single substantial dwelling had already been built and occupied for at least 10 years). One major consideration was whether or not the planning permission had been duly implemented so that the planning permission continued and inured in respect of the two separate detached properties with associated garages and access (that came within the remit of the planning permission). Or whether in fact the planning permission was never implemented by reason of breach of condition and the works to the main house were done without the benefit of planning permission. 

The usual starting point for consideration of whether a development has been lawfully commenced is reference to the "Whitley principle" (F G Whitley & Sons –v- Secretary of State for Wales 1992) which can be summarised as follows:

In general, operations carried out in breach of a condition cannot be relied on as a material operation capable of commencing the development within the meaning of Section 56 (2) of the TCPA 1990. Section 56 of the 1990 Act sets out the basis of when a development can be lawfully commenced. 

In Borough Council –v- Secretary of State for Communities and Local Government & Murzyn (2008)conditional permission had been granted for a barn conversion and some of the works had been carried out. The question whether these were sufficient to keep the permission alive depended on whether the two conditions attached to the planning permission were in fact conditions precedent or not. If those conditions were considered to be genuine conditions precedent then the development was unlawful and the permission would lapse. This case is a useful guideline of what constitutes a conditions precedent and summarises the area of law relating to commencement of development.

In breach of planning permissions

Returning to our case, the local planning authority took the view that some of the conditions were in fact genuine conditions precedent that had to be satisfied and discharged before development could ever commence. Therefore technically the main substantial dwelling that had in fact been constructed was built in breach of the planning conditions. 

Accordingly, the facts of this particular case mirror the situation embodied by the Whitley principle. Pima facie the dwelling was unlawful and not in actual implementation of the planning permission even though it was purported it was in purported compliance with it. 

However, in R (on the application of HRT Aggregates Limited) –v- Hartlepool Borough Council (2005) a distinguished planning Judge (Sullivan J) stated that “the Court should be wary of applying the (Whitley) principle in an unduly rigid fashion…” and cautioned that it was important the distinction between development without planning permission and development in breach of condition and not blurred by an indiscriminate use of the term “condition precedent”.  

The HRT Aggregates case on the question of whether a development has been lawfully commenced or not, there are essentially 3 questions that need to be considered;

  1. Has there been a breach of condition?  (stage 1) 
  2. If so, is the effect of that breach of condition such as to render the development as a whole unlawful?  (stage 2)
  3. If so, do any of the exceptions to the Whitley principle apply such as irrationality, abuse of power on part of a Planning Authority if it sought to enforce or compliance in substance?  (stage 3)

Local planning authorities must be absolutely clear in drawing a distinction between (a) a condition which in truth merely stipulates that something must be done before the time when the development commences, and (b) a condition which goes further and stipulates that the development cannot commence unless the condition is fulfilled. 

Taking the above reference to (a) and (b), a breach of condition (i.e.) (a) would enable the Local Planning Authority to take enforcement action to remedy the non-performance of the stipulated action but if condition (b) is broken that would render the development unlawful and is therefore subject potentially to enforcement action itself (i.e. cessation of the whole operation in question). This distinction would mirror the two different forms of breaches of planning control that are set out in section 171 (a) (1) (a) and (b) of the 1990 Act. 

Essentially the recent Murzyn case (see above) established that the Whitley principle would only be engaged where there is a breach of a class (b) condition. The development as a whole in this circumstance could probably be described as unlawful and it is only if the development as a whole is unlawful that its commencement is deprived of the effect of a live planning permission. 

It is therefore absolutely fundamental and necessary to examine and construe every condition attached to a planning permission very carefully to see whether it is in fact either an (a) or (b) condition.

The owners in this situation were therefore left with a substantial dwelling which was used and occupied as their single, main dwelling house but which had been built in breach of planning control (for instance, condition 3 that samples of bricks and tiles must be submitted and approved by the local planning authority before the development is commenced). Non-compliance with these conditions would render the planning permission as not having been implemented hence it would lapse on expiry. However, fortunately for the owners their principle dwelling house had in fact been occupied for more than the statutory enforcement period and was immune from enforcement proceedings  

Permission lapsed

The attention turned to the owner's nest egg (i.e. the two separate dwellings where is was believe that the plots could be in fact sold off with the benefit of planning permission). The LPA considered that the permission had in fact lapsed because the it had been implemented in breach of condition. The consequence of this was such that the owners did not have the benefit of permission to develop the two further detached dwellings and essentially lost the nest egg on which they were relying for their pension.

Check your planning permission carefully

One cannot be too careful about whether a condition is a ‘true condition precedent’ for the purposes of ensuring that a planning permission is genuinely kept alive. Furthermore in this particular scenario there was no application to vary any of the conditions by virtue of section 73 of the 1990 Act that would probably amount to further evidence that the planning permission for the owner had expired by virtue of the default period within the planning permission itself.  

So if you have an existing planning permission which has not expired, check it carefully to make sure that it can be, or is, genuinely kept alive – particularly if you are using it as a tool for financial leverage for the future. Timely legal advice could avert an unwelcome shortfall in your future finances.

About the author

Rebecca is a specialist planning lawyer who advises on all aspects of the planning process and highway matters.

Rebecca Mushing

Rebecca is a specialist planning lawyer who advises on all aspects of the planning process and highway matters.

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