Greyfort Properties Ltd v Secretary of State for Communities And Local Government & Anor

Operations carried out in breach of a condition which expressly prohibits their commencement cannot implement the planning permission. A condition requiring approval before work begins may be equivalent to one stating that no work shall begin before approval.

The decision-maker must assess whether the condition goes to the heart of the permission. The condition’s significance, the permission as a whole and the planning context are material. The general rule should not be applied rigidly where that would frustrate the statutory purpose or produce an absurd result. Exceptions are limited, but may arise where enforcement would be irrational or an abuse of power.

Greyfort Properties Ltd owned land covered by a 1974 permission for 19 flats. Access works were undertaken in January 1978. An inspector found that those works were sufficient in physical terms to commence development, but that they breached a condition requiring the building’s ground-floor levels to be agreed before any work commenced on the site. The permission had therefore not been lawfully implemented.

Mitting J dismissed Greyfort’s challenge under section 288 of the Town and Country Planning Act 1990: [2010] EWHC 3455 (Admin). Greyfort appealed, contending that the condition lacked the clear prohibitory wording required by the Whitley principle and did not go to the heart of the permission. The central issue was whether the inspector had lawfully treated the access works as incapable of implementing the permission.

1. Appeal dismissed. The condition was a clear and express prohibition on commencing any work on the site before agreement of the building’s ground-floor levels. The inspector was entitled to conclude that the access works breached it and could not lawfully implement the permission.
2. The Whitley principle asks whether the operations were permitted by the planning permission read together with its conditions. Operations contravening a condition cannot ordinarily commence the development authorised by that permission. The principle is judicially created and should not be applied so rigidly that it produces absurd results or frustrates the legislation’s underlying purpose.
3. A prohibition need not use the formula “no development shall take place”. A requirement that a matter be approved “before any development takes place” has the same substantive effect. Here, “before any work is commenced on the site” plainly covered the access works. The condition’s reference to work on the whole site was broader than the neighbouring condition concerning work on the flats. The differently worded condition considered in Hammerton depended on its particular context and did not assist Greyfort.
4. The inspector was entitled to find that agreement of the ground-floor levels went to the heart of the permission. The approved plans did not define those levels with sufficient precision. The condition’s inclusion in a short permission, the site’s steep gradient and sensitive setting, and the previous planning concern about ground levels demonstrated its practical importance. The assessment was primarily for the specialist decision-maker, and the court should exercise caution before substituting its own reading of the plans.
5. None of the limited exceptions to the Whitley principle applied. Enforcement was not shown to be irrational or an abuse of power, and applying the principle produced a sensible result consistent with the planning legislation. Richards LJ gave the judgment of the court; Leveson and Maurice Kay LJJ agreed.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 908, unanimously dismissed Greyfort’s appeal and affirmed the rejection of its statutory challenge.
2. High Court, Administrative Court: Mitting J dismissed Greyfort’s challenge under section 288 of the Town and Country Planning Act 1990: [2010] EWHC 3455 (Admin).
3. Planning appeal: An inspector appointed by the Secretary of State dismissed Greyfort’s appeal under section 195 of the Town and Country Planning Act 1990 against the refusal of a certificate of lawful use or development.