An unexpected turn of events

An inspector has decided that a lawful start has been made on a development granted planning permission in 2004, though not for the reason claimed by the appellant (DCS Number 400-035-184). 

Planning permission had been granted for the demolition of the existing buildings on the site and the construction of two new dwellings. This was subject to two conditions, the inspector noted, the first a standard five-year commencement condition, and the second relating to external materials. The second condition said: ‘Details of materials to be used on the external elevations of the development shall be submitted to and agreed in writing by the Local Planning Authority prior to the development being commenced.’ 

The council did not dispute that the demolition had occurred within the five-year life of the permission. However, it claimed that there was no written confirmation of the materials being agreed within what was an otherwise complete file. The appellant, although not disputing this, argued that the condition had been discharged by way of a verbal agreement between the 2004 applicant and a planning officer. 

In an unexpected turn, the inspector found the second condition to be unenforceable. She reasoned that, whilst it required materials to be agreed, there was nothing in the condition that required that the agreed materials should be used on the development. In other words, the condition lacked an implementation phase. In such circumstances the inspector considered that the condition was invalid and could therefore not be a ‘condition precedent’ going to the heart of the planning permission. Accordingly, she issued a certificate of lawful development.

Section 4.412 of DCP Online concerns the six tests for planning conditions.