Brent London Borough Council v Secretary of State for Communities and Local Government and Anor

Under the Town and Country Planning Act 1990, development begins when the earliest material operation comprised in it begins. Laying out part of a road can suffice.

The principle that operations in breach of a planning condition cannot commence authorised development is applied by examining the condition and the approved plans. A condition requiring later construction to an approved specification, without prohibiting commencement or laying out, did not make preliminary access-road works unlawful. A legal point omitted before an inspector cannot be raised on a statutory planning appeal where its omission prejudiced the other party and altered the inquiry.

Brent London Borough Council appealed against Lloyd Jones J’s judgment of 9 June 2008, which struck out its application under section 288 of the Town and Country Planning Act 1990. The application challenged a Secretary of State decision granting Ashia Centur Limited a certificate of lawful use for development at the former Twyford Tip.

The council had granted outline planning permission in 1993. The issue was whether works carried out in 2002 and 2003 lawfully began the permitted development before the agreed deadline of 12 January 2004. The council sought to argue that the works breached condition 6 and therefore could not commence development under the Whitley principle, although that point had not been taken before the Inspector.

Appeal dismissed. The council’s statutory challenge was properly struck out.

1. Commencement of development. Under section 56(2) of the Town and Country Planning Act 1990, development begins on the earliest date when any material operation comprising it begins. Section 56(4)(d) includes an operation in the course of laying out or constructing a road or part of a road. The beginning of one such operation is sufficient. The decision in Malvern Hills DC v Secretary of State for the Environment [1982] JPL 439 supported that approach.
2. Planning conditions. The court accepted the general Whitley principle that an operation in breach of a planning condition cannot be relied upon as commencing authorised development: Whitley & Sons v The Secretary of State for Wales [1992] 64 P & CR 296 and Henry Boot Homes Limited v Bassetlaw DC [2003] 1 P&CR 23. The court did not need to decide whether later cases had relaxed that principle. Condition 6 was not prohibitory and did not require approval before the laying out of the road. It required the road to be constructed in accordance with specifications, including lighting and drainage.
3. Application to the works. The works were material operations comprised in the permitted development and were carried out, subject to minor possible exceptions, in accordance with substantially approved plans. They did not prevent later approval of the remaining details, prejudice compliance with an approved scheme, infringe the condition’s timing requirement, or undermine its traffic and safety purposes. The access arrangements were subsidiary to the substantial building development and were not shown to be a sensitive planning issue. The works were therefore lawful and there was no breach of condition 6.
4. Point not taken before the Inspector. A legal point may in an appropriate case be raised for the first time before the court. Here, however, the council’s omission prejudiced Ashia because the inquiry would have taken a different course, the Inspector would have considered the approved plans, and further evidence might have been called. The council had deliberately chosen not to take the point and could not raise it later.
5. Keene LJ additionally held that section 56(4)(d) is disjunctive and that the earliest laying-out operations were not in breach of a condition concerned only with construction. Goldring LJ agreed with both judgments.

The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the council’s appeal and upheld the striking out of the section 288 application on both admissibility and merits grounds, on 17 February 2009.
• Queen’s Bench Division, Administrative Court: Lloyd Jones J struck out the council’s section 288 application on 9 June 2008.