Dead or incapable

The nature of ‘conditions precedent’ has been exercising the finest minds in planning, as indicated in The order of precedence. When considering whether a permission has been lawfully implemented despite being in breach of a condition precedent a principal consideration is whether or not the details required go to the heart of the matter.

A recent appeal case (DCS Number 400-016-817) shows that conditions attached to outline permissions requiring the submission of the details of reserved matters are treated differently from ‘conditions precedent’. This case concerned an outline planning permission granted in 1999 for the replacement of two existing B1/B8 buildings in southwest London with two new B1 buildings. The inspector explained that “All reserved matters applications must be submitted within the three year period if the outline planning permission is to be kept alive. It does not matter if approvals are given after the three year period has expired, providing all the applications are made within the three year period.” In the case before him the relevant three year period ended on 9 March 2002. A reserved matters application solely for landscaping was submitted out of time and should have been returned by the council, but in any event it was refused. Albeit that development had commenced in June 2002, the outline planning permission was dead or incapable of lawful implementation after 9 March 2002 because it was no longer possible to submit details of the unapproved reserved matter for approval in accordance with the three year condition.

Citing Oakimber v Elmbridge BC [1992] and more particularly Rastrum and Benge v SSCLG and Rother DC [2009], the inspector recorded that the line of judicial authority is that until all of the reserved matters have been approved any works purporting to be commencement would be unlawful and in breach of planning control. In Rastrum, there had been a failure to obtain approval of all of the reserved matters as required by the outline planning permission, so that the permission had lapsed after three years and was not capable of being lawfully implemented for that reason.

The inspector found that the principle confirmed in Rastrum was directly comparable to the current appeal case, concluding that the development which had been commenced was done so in the context of a planning permission which was no longer capable of lawful implementation. A certificate of lawfulness was denied.

The following DCP section is relevant: 5.1322

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