Ellaway v Cardiff County Council

The Whitley principle permits development to commence despite breach of a pre-commencement condition where the developer applied for approval before commencing works, the works conform to the details submitted, and those details are subsequently approved. The exception may apply to EIA development. Retrospective validation does not require an application under section 73A of the Town and Country Planning Act 1990, provided that the process complies with the EIA Directive, involves robust public consultation, prevents circumvention of environmental rules, and does not give the developer an improper advantage. The exception is sufficiently clear and predictable to satisfy legal certainty.

The claimant sought judicial review of Cardiff County Council’s decisions to discharge pre-commencement planning conditions and not to take enforcement action against Viridor Waste Management Ltd. The conditions related to an energy-from-waste facility which constituted EIA development. The council accepted that its earlier purported discharge of the conditions had been unlawful, but it later conducted consultation exercises, considered further information, discharged the conditions and concluded that enforcement was not expedient.

The claimant argued that the council had thereby granted unlawful retrospective development consent. She relied on domestic public law, the EIA Directive, the Town and Country Planning Act 1990 and public participation principles. The central issues were whether the Whitley exception could apply, whether section 73A was the exclusive statutory route, and whether the consultation process was adequate.

1. The claim was dismissed. The decisions to discharge the conditions and decline enforcement action were lawful.
2. The Whitley principle is a clear general principle of domestic planning law. Development carried out in breach of a condition will not ordinarily commence the permitted development. An established exception applies where approval was sought before the works began, the works conformed to the details submitted, and those details were subsequently approved. The council was entitled to consider discharge and enforcement at the same meeting because the issues were inextricably linked.
3. The exception was not displaced by section 73A of the Town and Country Planning Act 1990. That provision was not the only lawful route for validating commencement, including in an EIA context.
4. Proceeding on the assumption that the decisions constituted retrospective development consent under article 2(1) of the EIA Directive, the court held that European law did not impose an absolute prohibition. The circumstances were exceptional because the original permission followed an environmental assessment, applications for discharge had been made before commencement, the works conformed to the submitted details, the council’s procedural error was not caused by Viridor, and the time for commencing the development had not expired.
5. The Whitley exception was sufficiently precise and predictable to satisfy legal certainty. It did not permit circumvention of environmental rules. The two consultation exercises gave the public access to the relevant information and a genuine opportunity to make representations. The later non-technical summary corrected the earlier omission before the decisions were made.
6. Commencing works before valid discharge did not, without more, confer an improper advantage disentitling the developer from retrospective consent. No further planning conditions were shown to have been required, and reliance on the council’s defence in the proceedings was not such an advantage.
7. The consultation was properly understood as a broad re-consultation concerning the further information and any other information. The challenge based on inadequate public participation therefore failed.