Rastrum Ltd & Anor v Secretary of State for Communities and Local Government & Anor

An outline planning permission is not lawfully commenced by physical works carried out after the period for submitting and obtaining approval of reserved matters has expired. Where material reserved matters remain unapproved, the permission is incapable of lawful implementation. Later immunity from enforcement makes the works lawful for enforcement purposes but does not revive the permission. A breach concerning one reserved matter does not extinguish the requirements concerning others. In planning, legitimate expectation has only limited scope to waive statutory requirements. An unambiguous representation is required. Although reliance and detriment are not invariably essential, their absence may prevent a finding of unfairness. Without a legitimate expectation, a planning authority must assess enforcement on the basis of current policy and legal advice.

The respondents challenged refusal of a certificate of lawfulness for implementation of a 1981 outline planning permission. The Inspector dismissed the first respondent’s appeal under section 195 of the Town and Country Planning Act 1990 against refusal of a certificate under section 192. The Administrative Court, by an order dated 4 February 2009, allowed the respondents’ appeal. The appeal concerned whether roadway works carried out in 1987 lawfully commenced the permission despite several reserved matters remaining unapproved, and whether earlier conduct or a section 106 agreement created a legitimate expectation that the permission remained implementable.

Lord Justice Sullivan delivered the leading judgment. Lord Justices Etherton and Ward agreed.

1. Lawful commencement. The permission was an outline permission subject to due compliance with conditions requiring reserved matters to be submitted within three years and approved before development commenced. Since material matters had not been approved by 18 March 1984, it became impossible to comply with the permission. The roadway works carried out in January 1987 therefore could not lawfully commence the development, despite being physically sufficient for that purpose.
2. Enforcement immunity. The roadway works later became immune from enforcement and had to be treated as lawful under section 191(2) of the Town and Country Planning Act 1990, as substituted by the Planning and Compensation Act 1991. That did not retrospectively make them a lawful commencement of a permission which was already incapable of lawful implementation.
3. Conditions and authorities. A condition requiring approval of several matters remains effective for matters still unapproved if the permission remains alive. The authorities were fact-specific. Whitley and Sons v SSW [1992] 64 P&CR 296 and R (Hammerton) v London Underground Ltd and Ors [2003] JPL 984 did not assist because later approvals or an abuse-of-power issue arose in those cases. Oakimber Limited v Elmbridge BC and Surrey CC [1991] 62 P&CR 594 provided the closest analogy. R (Hart Aggregates Ltd) v Hartlepool BC [2005] 2 P&CR 3 concerned materially different facts.
4. Legitimate expectation. A representation could not revive a permission which was already dead. The scope for non-statutory waiver of planning requirements was extremely limited, particularly given public and third-party interests: Henry Boot Homes Limited v Bassetlaw District Council [2003] EWCA Civ 983. The section 106 agreement was not an unambiguous representation that the permission could lawfully be implemented. There was also no evidence that the first respondent had relied on any representation or suffered significant detriment.
5. Disposition. Without a legitimate expectation, the authority had to consider enforcement expediency under section 172(1) on the basis of current planning policy and legal advice. The appeal was allowed and the Inspector’s decision was restored.

1. Court of Appeal (Civil Division) allowed the Secretary of State’s appeal and restored the Inspector’s decision.
2. Administrative Court, Queen’s Bench Division allowed the respondents’ appeal from the Inspector’s decision by order dated 4 February 2009.
3. Inspector appointed by the Secretary of State dismissed the first respondent’s appeal under section 195 of the Town and Country Planning Act 1990 in a decision letter dated 31 October 2007.