Robert Hitchins Ltd, R (on the application of) v Worcestershire County Council & Anor

A developer may switch between two extant planning permissions for the same, materially identical development, even after work has begun and while buildings remain partially completed. No physical demarcation between work under the permissions is required. The decisive questions are whether the permissions are mutually consistent and whether the developer has objectively abandoned reliance on the first permission.

A unilateral planning undertaking is construed objectively in its documentary, factual and commercial context. Where its language permits, the court may prefer an effective construction over one rendering the undertaking empty. Once development proceeds under a second permission, liabilities tied to future events under an obligation associated with the first permission do not accrue merely because that obligation remains valid.

Two outline planning permissions authorised the same housing development. The first was accompanied by a section 106 agreement requiring payment of a transport contribution in three instalments. The second was granted without that requirement after an inspector concluded that it would not satisfy regulation 122 of the Community Infrastructure Levy Regulations 2010.

Development began under the first permission, and the first instalment was paid. The developer later entered a unilateral undertaking stating that it would dispense with implementation of the first permission and proceed under the second. Hickinbottom J held in the Planning Court, [2014] EWHC 3809 (Admin), that the developer had switched permissions and that no further transport instalments were payable.

The county council appealed, challenging the construction of the unilateral undertaking, the evidence that operations proceeded under the second permission, and the lawfulness of completing development by relying successively on two permissions.

1. The appeal was dismissed unanimously. The unilateral undertaking objectively recorded the developer’s abandonment of reliance on the first permission from 18 September 2014. Operations after that date were therefore carried out under the second permission, and no further transport-contribution instalments accrued under the first section 106 agreement.
2. The contractual interpretation principles summarised in Arnold v Britton [2015] UKSC 36 applied in their essential features, with appropriate adjustment for a unilateral public document. The undertaking had to be construed objectively by focusing on its language in the documentary, factual and commercial context and by taking account of commercial common sense. “Implementation” had no single statutory meaning. In context, it meant the continued carrying out of the development, rather than merely its commencement. The alternative construction would have rendered the covenant ineffective because development had already begun.
3. The undertaking provided clear objective evidence of the permission under which later operations were performed. The physical operations themselves could not reveal the applicable permission because the permissions authorised identical development. Nor was it necessary to identify a physical boundary between work under each permission. A switch could apply to partially completed buildings where the permissions were materially identical.
4. The principle in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 concerns whether development under one permission makes it impossible to carry out development under another in accordance with its terms. Here, there was no inconsistency between the permissions and no physical or conceptual obstacle to completing the development under the second.
5. Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983 did not make the later operations unlawful. Its holistic approach addressed the statutory time limit for enforcement against an unauthorised building operation. It did not establish that an incomplete but compliant development was unlawful, still less that a building could not be completed under two identical permissions relied upon successively. Section 94 of the Town and Country Planning Act 1990 also implied that commenced but incomplete development could remain lawful.

1. Court of Appeal (Civil Division): The county council’s appeal was dismissed unanimously. The declaration made below remained effective: [2015] EWCA Civ 1060.
2. High Court, Planning Court: Hickinbottom J held that the developer had elected to continue the development under the second permission and declared that no further transport-contribution instalments were payable: [2014] EWHC 3809 (Admin).