Meisels & Anor v The Secretary of State for Housing Communities And Local Government

A condition requiring approval before development begins may be a condition precedent. Breach makes the development unlawful and may prevent the permission being implemented if the condition goes to the heart of the permission. That question is fact-sensitive and involves planning judgment, not merely construction of the permission.

A breach may nevertheless be ineffective for commencement purposes where, applying ordinary public law principles, enforcement has become legally impossible. Development materially different from the approved scheme may also fail to implement the permission, even where its external form is similar. A ground (f) appeal cannot grant planning permission and requires the appellant to identify a sufficiently detailed lesser step capable of remedying the breach.

Planning permission was granted for extensions and alterations to premises in Hackney. An enforcement notice alleged that the built development differed from the permission and required substantial removal and reinstatement.

The Planning Inspector dismissed appeals under grounds (c) and (f) of section 174(2) of the Town and Country Planning Act 1990. He found that a materials-approval condition had not been discharged before work began, that commencement before expiry of the permission had not been proved, and that the completed development was materially different from the approved scheme.

The claimants challenged the Inspector’s conclusions on irrationality and inadequate reasoning. The central issues were whether the condition prevented implementation, whether development had begun in time, whether the built scheme was sufficiently different from the approved scheme, and whether a lesser remedial step was available.

1. Condition precedent. Conditions 2 and 4 were conditions precedent in the sense that development was not to begin before compliance. The legal consequence depended on whether the relevant condition went to the heart of the planning permission. That required a fact-sensitive planning judgment, considering the condition in the context of the permission and its planning setting. The court would not interfere unless the Inspector’s conclusion was irrational in the Wednesbury sense.
2. Condition 2, controlling the external appearance and relationship of the building to its surroundings, was properly found to go to the heart of the permission. The absence of written approval meant that development begun in breach was unlawful and had begun without planning permission. The fact that the finished building caused no relevant planning harm could not establish lawful commencement.
3. Public law exception. The Whitley principle may be displaced where, at the time enforcement is considered, ordinary public law principles mean that the authority could not lawfully enforce the condition. Mere inaction, indifference or an expectation that enforcement will not occur is insufficient. No such basis was established here.
4. Material difference from approved scheme. Whether works implement a permission is a matter of fact and degree. The decision-maker must consider the development as a whole, including similarities, differences, usability of the works in the permitted development and the alterations required. The Inspector was entitled to find that substantial internal differences, including the number, size and arrangement of flats, meant that a different scheme had been constructed.
5. Ground (f). A ground (f) appeal under section 174(2) is remedial, not a means of granting planning permission. It applies only where extant permission exists and permits consideration of a lesser step capable of remedying the breach. The Inspector must primarily consider proposals put forward; he has no duty to search for alternatives. The claimants had offered no sufficiently detailed modification scheme, and the appeal was in any event incapable of succeeding because the permission had expired.
6. The appeal was dismissed.

The claim was brought under section 289 of the Town and Country Planning Act 1990 against the Planning Inspector’s decision dated 18 November 2018 dismissing the claimants’ enforcement notice appeals under grounds (c) and (f).

The High Court dismissed the appeal.