Glenholme Developments Ltd v The Welsh Ministers & Anor

In construing a planning permission, the permission, its conditions and express reasons ordinarily provide the complete source of meaning. Development carried out in breach of a condition cannot ordinarily constitute implementation of the permission. The Whitley principle must be applied with regard to recognised exceptions and without undue rigidity, but there is no general discretion based only on fairness. A distinction may be drawn between permission in principle, where failure to obtain reserved-matters approval prevents implementation, and full permission where non-compliance concerns only one aspect. The court must consider the wording and circumstances of the particular permission. Where a condition requiring approval of landscaping goes to the heart of an outline permission, development cannot lawfully commence without that approval.

The claimant challenged an inspector’s dismissal of its appeal against refusal of a certificate of lawful use or development for 17 dwellings. The claimant relied on an outline permission granted in 1989, a 2005 amendment extending the time for reserved-matters applications, and a 2005 permission issued after a later application. It argued that the earlier permission had been implemented by construction of an access and part of an estate road, or that the later permissions were retrospective or amounted to approval of reserved matters. The central issues were whether the permissions had been implemented, whether the works were lawful, and whether the absence of approved landscaping prevented lawful commencement.

1. Appeal dismissed. The inspector had made no error of law. The court would interfere only for an error of law, applying the principle in Ashbridge Investments Ltd v MHLG [1965] WLR 1320.
2. A clear, unambiguous and facially valid planning permission is construed by reference to the permission, its conditions and the express reasons for those conditions. The application may be considered only where incorporated by reference or where the permission is ambiguous. The inspector was entitled to treat the 1989 permission as permission in principle. Condition 2 required approval of all the specified reserved matters before development commenced. The access and road works therefore did not lawfully implement the permission.
3. The principle in FG Whitley and Sons v Secretary of State for Wales and Clwyd County Council [1992] 3 PLR 72 was not to be applied rigidly. The recognised exceptions were not closed, but the court had no broad fairness discretion. The present facts were far removed from the exceptional circumstances described in Hart Aggregates and Greyfort Properties Ltd. The inspector had properly considered the distinction between permission in principle and full permission subject to one outstanding aspect.
4. The 2005 amendment did not retrospectively legalise works unlawful when carried out. Landscaping remained an essential condition of the amended outline permission. The inspector was entitled to conclude that commencement without approved landscaping would breach the conditions.
5. The 2005 permission was, on its face, a new full planning permission. There was insufficient evidence to construe it as reserved-matters approval. Since landscaping had not been approved, the permission could not lawfully be implemented. The decision therefore gave effect to the statutory scheme requiring permissions to be implemented within the prescribed period.

1. High Court (Administrative Court): the claimant’s statutory appeal under section 288 of the Town and Country Planning Act 1990 was dismissed. The inspector’s decision dismissing the planning appeal was upheld.
2. Welsh Ministers’ appeal decision: the inspector dismissed the claimant’s appeal against refusal of the certificate of lawful use or development on 25 April 2013.