The heart of the matter

A neat summary of the nature of a condition precedent can be found in an appeal seeking an  LDC to confirm that a house in Bedfordshire had been erected without planning permission (DCS Number 400-019-565).

The original permission for the house carried a condition to the effect that a turning space for vehicles should be constructed within the curtilage of the premises in a manner to be approved in writing by the planning authority before it was occupied. No details for the turning space had ever been submitted.

The inspector recorded that whether a failure to discharge a condition in advance of development starting results in a material breach of control resulting in unlawful development has been considered by the courts. In F G Whitley & Sons v SSW and Clwyd CC [1992], he noted, the Court of Appeal had said that the only question to be asked was whether the development was permitted by the planning permission read together with its conditions. If the development contravened the conditions it could not be properly described as commencing the development authorised by the permission. However, in the more recent R (oao Hart Aggregates Ltd) v Hartlepool BC [2005], he continued, it was held that a distinction has to be drawn between a condition which requires some action to be undertaken before development is commenced and a condition which expressly prohibits any development taking place before a particular requirement has been met. The judge, the inspector explained, took the view that even so it is necessary for the condition both to be expressly prohibitive of commencement of development and to go to the heart of the permission. Only when both tests are satisfied is it a condition precedent to which the Whitley principles apply and where the development would be development without planning permission.

Applying these principles to the case before him the inspector determined that to commence development of the approved dwelling in the absence of agreed details of the turning space would not have been a breach of the condition. Non-compliance with the condition would not have occurred until and if the “premises” (the dwelling) were occupied with those details not having been approved in writing. Thus, he reasoned, a breach of control such as that set out by the appellant was a breach of the planning condition but not one that threatened the heart of the planning permission for the dwelling. Any breach of that condition did not make the whole development unauthorised. The condition, he determined, was not a true ‘condition precedent’.

The inspector concluded that the construction of the dwelling without complying with the condition did not have the effect of making the whole development unlawful. Accordingly, the council’s refusal to grant a certificate of lawful use or development in respect of the erection of a dwellinghouse constructed without planning permission was well-founded and the appeal therefore failed.

More on Whitley and Hart, together with other court cases relevant to this issue, can be found at section 6.342 of DCP Online.