The order of precedence

In a recent appeal decision an inspector gives consideration to what makes a condition a true condition precedent (DCS Number 400-016-471).

The case concerns the refusal of a lawful development certificate for the creation of a first floor flat, granted planning permission in 2006. The appellant claimed that the permission had been implemented due to the digging of a trench. The inspector, however, was not satisfied either that the works were done in accordance with the permission or that they were more than de minimis. She explained that even if the digging of the hole had constituted a material operation, it was possible that the permission had expired if there was a failure to comply with a condition precedent before the deadline for commencement of the permission.

Planning permission had been granted on appeal and was subject to three conditions, the inspector recorded. The second condition was for no development to take place until samples of external materials had been submitted to and approved by the local planning authority. The third condition required the submission and approval of details of a parking space before development commenced. Interestingly, the inspector noted a clear distinction in how the two conditions had been worded and she believed it to be purposefully so. She found it reasonable to conclude that the inspector had been deliberate in his choice of words to ensure that no development should take place before details of materials were approved. Those details were a matter of substance going to the heart of the matter, and the condition was a true condition precedent, she determined. On the other hand, she reasoned that parking was peripheral to the development itself and would not be a condition precedent, and this was reflected in how the condition was framed in contrast with the materials condition. She determined that the non-compliance with the materials condition meant that the planning permission could not properly be described as implemented and it had therefore lapsed regardless of any operation carried out at the site.

So….the inspector has concluded that a condition which begins “Before development commences….” is not a true condition precedent.

Do readers have any thoughts on this?

The following DCP section is relevant: 6.342