P Casey (Enviro) Ltd, R (on the application of) v Bradford Metropolitan Borough Council & Anor

A development carried out in breach of a planning condition cannot ordinarily satisfy a condition imposing a deadline for implementation. The limited exceptions apply where, on public law principles, enforcement would be irrational or an abuse of power. There is no general judicial discretion to relieve against consequences merely because they are harsh or unfortunate. The applicant remains responsible for submitting a compliant scheme, and an authority’s failure to identify defects in an application does not ordinarily prevent enforcement. Where the application itself was defective, quashing the authority’s approval does not leave an outstanding application capable of later correction after the implementation deadline.

The claimant sought judicial review of Bradford Metropolitan Borough Council’s refusal to determine an amended landscaping scheme required by a planning permission for waste disposal and quarry restoration. The permission required implementation by 14 March 2006 and required prior approval of a detailed landscaping scheme. The scheme submitted before the deadline failed to identify existing vegetation to be retained. Its approval was later quashed in separate proceedings, and the claimant then sought to amend the original application after the deadline.

The central issues were whether the permission had been lawfully implemented, whether enforcement would be irrational or an abuse of power, and whether the original application remained outstanding after the approval was quashed.

1. Claim dismissed. The development had been purportedly commenced in breach of condition 5, because the landscaping scheme did not contain the required details of existing trees, shrubs and hedgerows. Under the Whitley principle, such implementation could not satisfy the time limit in condition 1.
2. The recognised limits to that principle arise where enforcement would be unlawful on public law grounds, notably irrationality or abuse of power. The authorities provide no general discretion to relieve against planning consequences merely because they are harsh. Such cases are likely to be rare.
3. There was no abuse of power. The claimant was responsible for submitting a compliant scheme. The Council’s approval did not transfer that responsibility to the authority, and the Council was entitled to rely on the claimant’s failure even though it had not identified the defect when granting approval. The court rejected evidence that the claimant had been given a dispensation from providing the required information.
4. There was no irrationality. The merits of the development, the Council’s general support for it, and the circumstances causing non-compliance were immaterial in the absence of abuse or irrationality. The case did not contain features equivalent to those in Whitley or Hart Aggregates.
5. The quashing of the Council’s approval did not leave the original application outstanding. The defect was not confined to the approval: the application itself failed to comply with condition 5(a). The Council therefore had no duty to determine the later addendum.
6. The claim was dismissed. The claimant was ordered to pay the Council’s costs of £14,700 within 28 days.

This was a first-instance judicial review. The judgment records earlier planning and judicial review proceedings concerning the quarry, but no appellate history of the present claim.