Bedford Borough Council v Secretary of State for Communities & Local Government & Anor

For the Whitley principle to prevent a planning permission being treated as lawfully commenced, the breached condition must make commencement of the development itself conditional on compliance. A condition requiring something to be done before commencement does not necessarily have that effect. The condition must be construed in the context of the permission, its subject matter and its stated purpose. A breach may remain enforceable without rendering the whole development unlawful. The distinction reflects the separate statutory treatment of development without planning permission and development in breach of condition under the Town and Country Planning Act 1990.

Bedford Borough Council challenged an inspector’s decision allowing an appeal by the landowner against refusal of a certificate of lawful use or development. Planning permission had been granted for conversion of a barn to a dwelling, subject to conditions requiring approval of a landscaping scheme before development and approval of boundary-treatment details before commencement. Works sufficient to begin the development had been carried out within the permission’s time limit, but without substantial compliance with those conditions.

The issue was whether the breaches made commencement unlawful under the principle in Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 185, so that the permission had not been implemented and no certificate could be granted.

The appeal under section 288 of the Town and Country Planning Act 1990 was dismissed. The inspector had correctly concluded that the breaches did not engage the Whitley principle.

1. Three-stage analysis. The court identified three questions: whether there was a breach of condition; whether the breach rendered the development as a whole unlawful, thereby engaging the Whitley principle; and, if so, whether an exception such as substantial compliance, irrationality or abuse of power applied.
2. True condition precedent. At the second stage, a distinction must be drawn between a condition which merely requires something to be done before commencement and a condition which prohibits commencement unless the requirement is fulfilled. Only the latter is a true condition precedent for this purpose. The condition must be construed in context. Its subject matter need not be central to the permitted activity if its wording clearly makes commencement conditional upon compliance.
3. Application. The landscaping and boundary-treatment conditions required approvals before commencement but did not expressly prohibit commencement. Their subject matter was peripheral to the barn conversion, and the boundary-treatment condition did not require boundary treatment to be carried out. Non-compliance therefore created an enforceable breach, but did not make the building as a whole unlawful. The inspector was entitled to undertake that contextual analysis.
4. Since the Whitley principle was not engaged, it was unnecessary to consider the possible stage-three exceptions or enforcement questions. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £8,840.

This was a statutory appeal to the Administrative Court under section 288 of the Town and Country Planning Act 1990 from an inspector’s decision dated 15 November 2007. The inspector had allowed the landowner’s appeal under section 195 against the Council’s refusal of a certificate under section 192.