Henry Boot Homes Ltd v Bassetlaw District Council

A material operation starts development only if it is authorised by the planning permission read with its conditions. Work done in breach of a condition requiring compliance before development begins does not implement the permission.

Following the statutory introduction of section 73, a local planning authority cannot ordinarily vary, waive or permit phased non-compliance with planning conditions through an informal arrangement. The statutory process protects third-party and public interests. Legitimate expectation will therefore very rarely enable a developer to treat unauthorised work as valid implementation of a planning permission, particularly where the issue is one of law and the developer could obtain the necessary approvals in time.

The appellant held an outline permission for a residential development subject to conditions requiring several matters to be approved or completed before development commenced. It carried out works which physically amounted to material operations, but did so without satisfying a number of those conditions.

The Council’s officers initially proceeded on the assumption that the permission had been implemented. The appellant contended that the Council had thereby waived compliance, or created a legitimate expectation that the works would be treated as a lawful commencement. Sullivan J held that the permission had not been lawfully implemented before its expiry and granted declarations accordingly: [2002] J.P.E.L. 1224.

The central issue was whether informal conduct by the local planning authority could validate commencement in breach of conditions or found a binding legitimate expectation.

1. Appeal dismissed unanimously. Lord Justice Keene, with whom Lord Justice Brooke and Mr Justice Bodey agreed, held that the works did not lawfully commence the development. Although they physically constituted material operations, they were undertaken in breach of conditions which had to be satisfied before development commenced.

2. The court applied the principle formulated in Whitley: a material operation can commence development only if it is permitted by the planning permission read with its conditions. Work which contravenes those conditions is unauthorised planning development and cannot preserve the permission against expiry.

3. The statutory scheme under Town and Country Planning Act 1990, especially section 73, provides the normal means of varying or discharging conditions. It carries safeguards for the public and third parties. Informal waiver, including an arrangement allowing phased development contrary to a condition, would bypass those safeguards and has an extremely limited, if any, role under the modern scheme.

4. The Council’s officers had assumed that the permission had been implemented, but had not addressed the legal effect of beginning work in breach of condition. Their conduct did not create a legitimate expectation that the court must regard the works as lawful implementation. The issue was a legal one, third parties could challenge it, and the appellant was able to obtain legal advice and had warning in sufficient time to seek outstanding approvals.

5. The court noted the limited Whitley exception. Timely applications for outstanding approvals may retrospectively validate earlier work if approval is later obtained and prevents enforcement. The appellant did not successfully pursue that route. Conditions therefore had to be complied with at least in substance, or varied or discharged under sections 73 or, where appropriate, 73A.

• Court of Appeal (Civil Division): dismissed the developer’s appeal and upheld the conclusion that the outline permission had not been lawfully implemented.
• Administrative Court (Sullivan J): held that development had not commenced before expiry because conditions precedent had been breached; granted declarations to that effect and rejected the claimed legitimate expectation: [2002] J.P.E.L. 1224.