Food Convertors Ltd v Wiltshire Council

A planning permission is not lawfully implemented where development is begun in breach of a pre-commencement condition requiring approval of details. Works undertaken in breach do not preserve the permission from expiry. Where two permissions relating to the same land are mutually inconsistent, both cannot be implemented; implementation of one may prevent implementation of the other. Judicial review will ordinarily be refused where the claimant has an adequate alternative remedy, including an application for a certificate of lawfulness and any available appeal.

The claimant sought judicial review of the Council’s refusal to discharge conditions attached to two planning permissions for a site in Wiltshire. The Council considered that the permissions had expired because required details had not been approved within the statutory period, the works were not carried out in accordance with the approved plans, and a later agricultural-access permission was inconsistent with the earlier permission.

The claimant relied on correspondence from a Council planning officer, the alleged implementation of landscaping and access works, and the later permission. The central issues were whether the earlier permissions had been lawfully implemented and whether judicial review was appropriate when a certificate of lawfulness could be sought.

1. Claim refused. The renewed application for permission to apply for judicial review was dismissed.
2. Under Town and Country Planning Act 1990, section 91, the 1997 permission was subject to a condition that the permitted development be begun within five years. Condition 4 also required detailed plans for parking, servicing areas and access to be submitted to and approved before development commenced.
3. Because no application for approval under condition 4 was made within five years, the permission effectively expired under section 93(4). Development undertaken without the required approval was in breach of a pre-commencement condition and was unlawful. Such works could not preserve the permission: F G Whitley & Sons v Secretary of State for Wales (1992) 62 P & CR 296.
4. The 1999 permission was similarly not lawfully implemented. The access was approximately 1.9 metres from the approved alignment. In addition, the later 2005 agricultural-access permission was mutually inconsistent with the 1999 permission. Applying Pilkington v Secretary of State for the Environment [1973] 1 W.L.R. 1527, both permissions could not be implemented, and implementation of the 2005 permission prevented implementation of the 1999 permission.
5. Correspondence from the Council’s officer did not create an estoppel against the Council. It did not establish lawful implementation, particularly since the required approval had never been obtained.
6. Judicial review was also inappropriate because the claimant had an alternative remedy. It could apply for a certificate of lawfulness under sections 191–192 of the 1990 Act and appeal to a planning inspector if that application were refused.