Greyfort Properties Ltd, R (on the application of) v Secretary of State for Communities and Local Government

For a planning permission to be lawfully implemented, operations must comply with the permission and its conditions. A condition requiring approval before development commences has the same effect as an express prohibition on commencing development before approval. The court must distinguish between a condition whose non-compliance prevents implementation of the permission and a condition whose breach merely creates an enforceable breach of planning control. Where the condition concerns a fundamental feature of the development, failure to obtain the required approval before works begin may prevent the permission from being implemented.

A 1974 planning permission authorised nineteen flats and required ground-floor levels to be agreed in writing before work began. Preparatory operations were carried out in 1978. The local authority refused a certificate of lawful use under section 191(1)(a) of the Town & County Planning Act 1990, and an inspector dismissed the claimant’s appeal under section 195.

The claimant challenged that decision under section 288, arguing that the approved plans sufficiently established the ground levels, or that condition (4) was not a condition precedent to commencement. The issue was whether failure to obtain approval of the ground levels meant that the permission had not been lawfully implemented.

1. Claim dismissed. The inspector had correctly identified whether the permission had been lawfully implemented and was entitled to find that condition (4) had not been discharged.
2. The principle in Whitley & Sons v Secretary of State for Wales and Clywd County Council [1992] 64 P & CR 296 is that operations must comply with the permission and its conditions. Operations contravening a condition cannot constitute commencement of the authorised development. The principle has narrow exceptions, reviewed in Leisure Great Britain Plc v Isle of Wight County Council [1999] 80 P & CR 370.
3. The court accepted the distinction in R (On Application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 Admin: non-compliance may be a breach of condition rather than failure to implement the permission, depending on whether the condition goes to the heart of the permission and on the stage of development.
4. Condition (4), requiring ground-floor levels to be agreed before work commenced, was materially equivalent to an express prohibition on development before approval. The inspector was entitled to regard ground levels as fundamental to the permitted scheme. The plans indicated approximate levels but did not establish that they had been finally determined or approved.
5. Agreed costs of £12,166 were awarded to the defendant. Permission to appeal was refused.

The claimant appealed to the Secretary of State under section 195 of the Town & County Planning Act 1990. An inspector dismissed the appeal by decision letter dated 1 September 2008. The Administrative Court dismissed the challenge under section 288.