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

2 Responses to “The order of precedence”

  1. pbqc

    The argument that there is a distinction between a condition which states “No development shall take place until …” and one which states that X must occur “before development commences” has been considered and rejected by the Courts on numerous occasions: see for example the Court of Appeal in Greyfort v. SSCLG 2011 EWCA Civ 908 at paras 29-31.

  2. pbqc

    I think the real “problem” here is the suggestion in Hart Aggregates that the test is whether the condition “goes to the heart of the permission”. Taken literally, this requires the decision-maker to decide (often many years after the event, when the original reasons for imposing a condition may be lost in the mists of time) how important a condition was – even if that means overruling the words which the local planning authority specifically chose to use. It is a particular problem with landscaping conditions, since these are always vulnerable to the argument that, once the principle of development and location of the buildings has been determined, there is no reason why the LPA needs to know exactly how the site is going to be landscaped before work commences (see, for example, the Bedfordshire case). However, where landscaping is a reserved matter, it would be perfectly normal to require details to be submitted before development commences: in that context, can it really be the case that a landscape condition “does not go to the heart of the permission”?
    In all this, what is often overlooked is the fact that Hart Aggregates was a highly unusual case, where the development had not only begun, but had (effectively) been completed for many years before the issue arose. In those circumstances (as Sullivan J pointed out) a conclusion that the permission had never been implemented could have led to radically different (and utterly perverse) results. In contrast, in most cases where the issue arises, only minimal works have been carried out in an effort to to keep the permission alive, and the consequences of taking enforcement action are fundamentally different. Para 19 of the Court of Appeal’s judgment in Greyfort recognises this difference, but the observations here are often overlooked when people come to apply Hart Aggregates.

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