A developer, even of a small project like an extension to a property, has five years from the grant of planning permission to commence either the operational development or the material change of use. Sometimes, the developer will take certain steps to keep the permission alive such as laying the foundations of a house. The developer could then apply for a CLOPUD (a Certificate of Lawfulness of Proposed Use or Development) which would provide assurance that planners were aware of the commencement of the development and that the planning permission was still extant.
It is often the nature of a CLOPUD that these are applied for close to the expiry of the five year time limit. This can present problems because planning permission is invariably granted subject to conditions. While the vast majority of these conditions will have limited impact on a CLOPUD, given the early stage of development, sometimes lurking in the small print are conditions precedent.
The Whitley principle, provides that where works undertaken contravene conditions precedent these works cannot be taken as lawfully commencing development. If development has not commenced lawfully within the five year period then planning permission lapses.
According to the case of R (on the application of Hart Aggregates Limited) v Hartlepool BC  EWHC 840 (Admin) the Whitley principle does not apply to all conditions. A distinction is drawn between conditions requiring something to be done “before development starts” and those which are true conditions precedent going to “the heart of the permission”. The former is a breach of a condition which can be enforced against while the latter is a condition whose breach means any development commenced cannot be considered to have been commenced lawfully.
Further clarification was provided in the case of Bedford Borough Council v The Secretary of State for Communities and Local Government and Aleksander Stanislaw Murzyn  EWHC 2304 (Admin).
The local planning authority had refused to issue a certificate of lawful use or development for a barn conversion. It considered the development carried out was unlawful because two conditions attached to the planning permission had not been adhered to namely those requiring the approval of the landscaping scheme and boundary treatments. Both the planning inspector and the High Court determined that neither of those conditions were “true conditions precedent”. In that case, while conditions had been breached this did not result in the development, which had been carried out, being determined unlawful.
Whether or not a condition is a true condition precedent requires analysis of the precise language of the condition. The condition’s nature and extent as well as the reasons for the condition must be considered. If the breached condition is not central to the development then its breach does not render the development unlawful and the permission remains live.
At the present time with Covid-19 restrictions in place, certain works may not be possible which could put certain planning permissions at risk. Early advice about what the conditions attached to planning permission entail can avoid potentially expensive appeals or the costly necessity of reapplying for planning permission. Stephen McIlveen is an Associate Partner in Worthingtons Solicitors dealing with property law and planning. For legal advice please telephone 028 9181 1538 or email firstname.lastname@example.org
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