PATRICK GREENWOOD v SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

On a statutory review of a planning appeal, the decision-maker must assess a proposed variation against the development authorised by the existing permission, including compliance with any condition precedent, where the application seeks effectively to vary that condition. The decision-maker may also compare proposed alterations with the existing physical structure where the application concerns both retention and alteration. The court reviews legality, not planning merits, and reads the decision letter fairly and as a whole. A breach of a condition precedent may mean that development was not lawfully commenced, but enforcement and any declaration concerning the resulting development remain matters for the local planning authority.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decision allowing an appeal against refusal of permission for the retention, refurbishment and re-roofing of a stable and store.

An earlier permission authorised a replacement dwelling subject to a condition requiring demolition of the existing structures before development commenced. The dwelling was built, but the frontage stable and store were retained. The claimant argued that the Inspector had used the existing buildings, rather than the earlier permission and its demolition condition, as the proper planning baseline, and had failed to apply the principle concerning conditions precedent.

1. The statutory review was dismissed. The Inspector’s decision was lawful.
2. Where an applicant seeks, in substance, to vary a condition precedent in a permission being implemented, the decision-maker must assess the impacts of the proposed variation, including the breach of that condition, against the impacts of the existing permission, including compliance with it. That was the correct planning exercise in this case (paras [47]-[48]).
3. The Inspector had regard to the earlier permission and its implementation. His assessment of character and appearance and living conditions compared retention of the stable and store with the alternative of demolition required by the earlier permission. He was also entitled to compare the proposed alterations with the existing building because the application sought both retention and alteration (paras [48]-[49]).
4. The decision letter was not unlawfully dismissive of the planning history. Although fuller explanation would have been helpful, the Inspector correctly stated that enforcement and alleged breaches of the earlier permission were matters for the Council and outside the scope of the appeal. The decision letter had to be read fairly, in good faith and as a whole, by a well-informed reader (paras [50], [39]).
5. The condition requiring demolition before development commenced was a condition precedent. The Whitley principle therefore applied, and construction of the dwelling without compliance was unlawful. That conclusion did not justify a declaration in these proceedings: the Council had to determine whether enforcement was appropriate and separately consider the application to vary the condition (paras [51]-[55]).