Greyfort Properties Ltd v Secretary of State for Communities And Local Government & Anor

The appellant (“Greyfort”) owns land in Torquay which was the subject of a planning permission granted in 1974 for the development of 19 flats. Greyfort contends that access work carried out in January 1978 amounted to commencement of the development, with the consequence that the planning permission remains extant. An inspector held that the work was carried out in breach of a condition of the planning permission and could not therefore amount to commencement of the development authorised by the permission. That decision turned on the application of what, in planning parlance, is commonly called the Whitley principle (see Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296), in relation to which Sullivan J (as he then was) made extensive observations in R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin).

In his judgment dismissing a challenge under s.288 of the Town and Country Planning Act 1990 to the inspector’s decision, Mitting J described the relevant law as “still in a state of flux”. In granting permission to appeal against the judge’s order, Sullivan LJ endorsed that view and said that the question whether Hart Aggregates was correctly decided and/or was correctly applied by the judge was of some wider importance. Before us, however, it was common ground that Hart Aggregates was correctly decided and the argument proceeded within the framework established by Sullivan J’s observations in the case.

The 1974 permission was a full planning permission in the following terms:

In September 2005 Greyfort applied to the local planning authority, Torbay Council, for a certificate of lawful use or development pursuant to s.191(1)(a) of the Town and Country Planning Act 1990, in respect of development in accordance with the 1974 planning permission. The Council refused to issue a certificate, on the ground that Greyfort had failed to prove that the permission had been lawfully implemented and was currently extant.

An appeal pursuant to s.195 of the 1990 Act was dismissed by an inspector appointed by the Secretary of State. In his decision letter the inspector said that the main issue in the case was whether the 1974 planning permission was lawfully implemented within 5 years of the date of the permission, i.e. prior to 25 March 1979. There were two aspects: (1) whether any works were carried out by the developer sufficient to amount to a commencement of development within the meaning of s.43 of the Town and Country Planning Act 1971 (the legislation in force at the material time), and (2) whether there was compliance with the pre-conditions of the permission. He answered the first aspect in favour of Greyfort, finding that the access work carried out in January 1978 was sufficient to amount to a commencement of development. But he answered the second aspect against Greyfort, holding that the work was carried out in breach of condition 4 and did not constitute a lawful implementation of the permission. The present proceedings relate to the inspector’s decision on the second aspect.

The principle in Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296 was expressed in these terms by Woolf LJ at p.302:

In Leisure Great Britain plc v Isle of Wight Council (1999) 80 P&CR 370, 378, Keene J described this as a clear legal principle of general application, observing that the court is not in these cases exercising some general equitable jurisdiction as though it had a broad discretion vested in it where fairness was the only or main criterion. It had been recognised, however, that there might sometimes have to be exceptions to the general principle, and the categories of exceptions were not closed.

One exception identified by Keene J came from Whitley itself, which could be seen as establishing the proposition that, if a condition requires an approval before a given date and the developer has applied by then for the approval, which is subsequently given so that no enforcement action could be taken, work done before the deadline and in accordance with the scheme ultimately approved can amount to a start to development.

A second exception was to be found in Agecrest v Gwynedd County Council [1998] JPL 325, where conditions required a number of schemes to be submitted and approved before any development could commence, but the planning authority subsequently agreed that development could start without full compliance with all those conditions. A third exception was to be found in R v Flintshire County Council, ex parte Somerfield Stores Ltd [1998] P&CR 336, where it was held that a condition had in substance been complied with where the relevant report had been submitted and approved but the relevant formalities, including a written notice of approval, had not been achieved by the time work began on site. Keene J described both those cases as narrow exceptions to the general principle, one arising where the planning authority had agreed to work starting without compliance and the other where the condition had been met in substance, although not in form.

Keene J went on to hold that the facts of the case before him did not fall within any of the existing recognised exceptions and that on those facts there was no proper justification for making an exception to the normally applicable principle.

In R (Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin), Ouseley J examined those and other relevant authorities at some length. He drew from them a number of points set out at [123]-[133] of his judgment. They included, at [124], that “the circumstances in which an exception to the general principle could be made are very limited” and, at [127], that “the principle discernible in Woolf LJ’s reasoning [in Whitley] is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development”. In R (Prokopp) v London Underground Ltd [2003] EWCA Civ 961, [2004] 1 P&CR 31, at [85], Buxton LJ (with whom the other members of the court agreed) endorsed Ouseley J’s view that irrationality of enforcement action falls within the public law exception to the Whitley principle.

As already mentioned, further extensive observations on the Whitley principle were made by Sullivan J in R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin). It is important to consider them against the background of the particular facts of that case. Planning permission had been given in 1971 for the extraction of minerals, subject to a number of conditions. In particular, condition 10 stated:

Sullivan J held that there had in fact been no breach of condition 10. He went on, however, to examine what the position would have been if there had been a breach of condition 10. His observations on the Whitley principle were therefore obiter but they were considered and detailed.

He said at [42]-[43] that when applying the principle it is important to bear in mind that it is not a statutory provision but a judicial creation, devised to fill a gap where the otherwise comprehensive planning code is silent and so give effect to the underlying purpose of the legislation; and that the court should be wary of applying the principle in an unduly rigid fashion and thereby pushing it to such an extreme that, far from giving effect to the underlying purpose of the legislation, it actually frustrates it by leading to absurd and wholly unforeseen results.

He referred at [54] to the defendant’s contention that any condition, such as condition 10, which required some action to be taken before development was commenced was a “condition precedent”, the breach of which would mean that the planning permission in question was not implemented. He went on to give examples of cases where that would produce unacceptable results, stating at [57] that he did not accept that such an outcome would give effect to Parliament’s intention in enacting the planning code in so far as it related to the commencement of development authorised by planning permission. He continued, in a passage of importance for some of the submissions before us:

He then distinguished Daniel Platt Ltd v Secretary of State for the Environment [1997] 1 PLR 73 as concerning a planning permission akin to an outline permission. He observed that the court in that case did not address the question of what would happen if there were not an outline but a detailed planning permission and if all the conditions of that detailed planning permission were complied with save for one which required approval of some particular aspect of the development before any development commenced. He continued:

Sullivan J commented next on Leisure Great Britain plc and Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983, [2003] 1 P&CR 23. He found it unsurprising on the facts of those cases that the Whitley principle had been applied in its full rigour. He gave an example where, on different facts, over-literal application of the Whitley principle in Henry Boot Homes would produce absurd and wholly unforeseen consequences. He said that the difficulties presented by an over-rigid application of the Whitley principle, and the court’s ingenuity in circumventing those difficulties, were illustrated by Ouseley J’s decision in Hammerton. He agreed with the approach taken by Ouseley J in that case, in particular to the effect that work done in breach of planning control might be effective to commence development where it would be unlawful in accordance with public law principles for a local planning authority to take enforcement action to prevent development proceeding. He said that such an approach gave practical effect to those parts of the statutory code that dealt with enforcement, and ensured that a judge-made principle was not applied so inflexibly as to produce results which defied common sense and served no useful planning purpose. This led him to the following conclusion:

As I have mentioned, the argument before us proceeded on the basis that Hart Aggregates was correctly decided, and indeed that the substance of Sullivan J’s observations on the Whitley principle was correct. The real disagreement was about their application to the particular circumstances of this case. Only as a remote fall-back argument, which was not elaborated and which does not arise on my view of the case, did Mr Brown QC, for the Secretary of State, raise the possibility of Hart Aggregates being wrong.

For my part, I see a lot of good sense in what Sullivan J said, especially about the need to avoid an unduly rigid application of the Whitley principle where it would produce absurd results and run contrary to the underlying purpose or policy of the legislation. It is entirely understandable why that should have been a matter of concern in the context of the very unusual facts of the case before him – facts which are in many ways at the opposite end of the spectrum from those in the present case. Some aspects of his reasoning were more important than others, and not every point he made appears to have been necessary to the conclusion expressed at [90]. But so far as concerns the passages directly relevant to the submissions made to us, I see no reason not to follow the approach of the parties and to accept the correctness of Sullivan J’s observations for the purposes of this appeal. There is no need to go further, and in the absence of relevant adversarial argument it would in my view be unwise to do so.

I turn to consider the inspector’s decision in the present case. In relation to condition 4 of the 1974 planning permission, he said that he was satisfied that “any work that took place on the site in advance of this condition having been discharged would not comprise a lawful implementation of the 1974 permission”: it was a condition that needed to be discharged before any work was commenced on the site (see the decision letter at [93]). He went on to find as a fact that condition 4 had not been discharged prior to the date of the access works relied on as constituting commencement of the development. He then turned to consider the legal consequences of the facts as he had found them. Having reviewed the legal authorities, including most of the cases I have covered above, he applied the legal principles to the facts, in a section that reads as follows (excluding internal cross-references):

After further discussion of relevant authorities and of submissions made by reference to them, the inspector concluded:

Mitting J, as I have said, rejected Greyfort’s challenge to that decision. The relevant parts of Mitting J’s reasoning are best considered when discussing the specific arguments advanced on the appeal. I should, however, mention that it was not suggested before Mitting J that the inspector was wrong to apply the test he extracted from Sullivan J’s judgment in Hart Aggregates, and the judge was content to accept that position. His approach was therefore much the same as I think it appropriate to adopt on this appeal.

Greyfort’s first ground of appeal is that there was an “error of approach to the need for clear words in a ‘condition precedent’ attached to a planning permission”. But the case advanced under this heading comes down in substance to one of construction of condition 4, against the background of the Whitley principle as discussed in the authorities. Mr Kingston QC relied in particular on Sullivan J’s statement in Hart Aggregates at [58] that if a local planning authority wishes to impose any obligation on an applicant by way of a requirement or prohibition it should do so in express terms, and that the need to spell out the requirement or prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development but the commencement of any development pursuant to the planning permission.

Mr Kingston’s first main argument on construction is that condition 4, in common with condition 3 but in contrast with conditions 1 and 2, refers to the commencement of “work”, not of “development”. It is submitted that “work” is not to be equated with “development”. Condition 4 is apt to apply to work on the building but it does not apply to all development and, in particular, does not encompass access work. Accordingly, it does not contain the clear and express prohibition on development that is needed for it to be a condition precedent within the Whitley principle. The local planning authority could easily have spelled out a clear and express prohibition on development but it chose not to do so. In support of the argument, Mr Kingston referred to Hammerton at [58]-[60], where Ouseley J accepted a submission that a condition which prohibited “work” commencing “on site” was not a prohibition on the commencement of development.

This is a new point, not raised in these terms before the inspector (albeit the inspector’s attention was drawn in submissions to the difference in language between conditions 2, 3 and 4) or before Mitting J. It is also, in my judgment, a bad point. The relevant question is whether the prohibition in condition 4 on the commencement of “any work … on the site” applied to the access works carried out in January 1978. Plainly it did. The inspector took a broad view of “the site”, holding that it included the access road (see his decision letter at [22]-[27]): this was contrary to the position set out in the parties’ statement of common ground but it was a finding properly open to him and a challenge to it was abandoned before Mitting J. He held further that condition 4 was a prohibition that had to be satisfied before any work could commence on any part of the site (decision letter at [23] and [93]). There can be no doubt that the access works fell within the prohibition.

The width of condition 4 is further emphasised by the difference in language between it and condition 3. Condition 3 refers to commencement of any work on the flats, whereas condition 4 refers more widely to commencement of any work on the site. Mr Kingston’s attempt to read condition 4 as applying only to work on the building (i.e. the flats) is untenable.

In substance, therefore, the prohibition in condition 4 on the commencement of “any work … on the site” was at the very least equivalent to a prohibition on the commencement of “development”. The inspector commented (again at [93] of the decision letter) that “any work … on the site” in condition 4 was arguably more extensive in its reach than the expression “any part of the development” in condition 2; but it is unnecessary to go that far.

The decision in Hammerton is of no assistance to Greyfort. It turned, in relation to this issue, on the particular facts. As explained by Ouseley J at [60] of his judgment, the conditions as a whole used a variety of expressions to cover the locations affected by their varying prohibitions. The expression “on site” was one variant; it was not the whole development area. When that was taken in conjunction with the phrase “works” it was clear that something different was intended from the conventional prohibition on development. The particular condition was to be construed as referring to the individual site to which each listed building within the overall scope of the works related. The contrast drawn between that condition and conditions preventing the commencement of development turned on those and other specific features which cannot inform the construction of condition 4 in the present case.

Mr Kingston’s second main argument on construction is that only conditions in the form “no development shall take place …” are sufficiently express to amount to a condition precedent within the Whitley principle, and that the wording of condition 4 (“Before any work is commenced …”) does not contain an express prohibition sufficient to achieve that result.

Mitting J rejected that argument. First, he said at [26] that condition 4 was in substance exactly that which Sullivan J gave in Hart Aggregates as an example of an express prohibition. Secondly, he said at [27]:

I agree with the judge’s conclusion and his reasons for it. The passage in Hart Aggregates to which the judge referred was at [59], quoted above, where Sullivan J gave two examples of express language that could have been used by the local planning authority if it had wished to prohibit extraction before a restoration scheme for the worked out areas was agreed: it could have imposed a condition in the form “No extraction shall take place …”; or it could have imposed the standard form of condition used in the grant of outline planning permission, namely “… before any development takes place”. Sullivan J plainly, and in my view rightly, regarded the two forms of words as equivalent.

In Bedford Borough Council v Secretary of State for Communities and Local Government [2008] EWHC 2304 (Admin), His Honour Judge Waksman QC saw a degree of tension in Hart Aggregates between, on the one hand, Sullivan J’s acceptance of the second form of words as apt to impose an express prohibition and, on the other hand, the rejection of condition 10 as a condition precedent. It seems to me that any tension is more apparent than real. It is clear that condition 10 was rejected as a condition precedent engaging the Whitley principle not because it used the second form of words rather than the first, but for the deeper reasons explained at length in the judgment. There is nothing in the judgment to detract seriously from the force of the examples given by Sullivan J at [59].

In giving those examples, Sullivan J no doubt chose the second form of words for the very reason that it is the standard wording used in outline planning permissions for requiring submission and approval of reserved matters. It could not seriously be suggested that that form of words is inapt to impose an express prohibition on the commencement of development before submission and approval of reserved matters. Yet it would be very surprising and unsatisfactory if the same form of words had a different meaning or effect in the context of a full planning permission subject to conditions.

Mr Brown, on behalf of the Secretary of State, also drew attention to the lack of support in other authorities for the distinction sought to be drawn by Mr Kingston between the two different forms of condition. For example, in Whitley, Leisure Great Britain plc and Henry Boot Homes Ltd there were conditions of both forms but the court drew no distinction between them. In the circumstances, however, it is unnecessary for me to examine this matter in any further detail.

Accordingly, I would reject both main arguments advanced on behalf of Greyfort under ground 1.

Greyfort’s second ground of appeal alleges an “error of approach to interpreting / construing the meaning of condition 4 attached to the planning permission as a matter of law”. On this occasion, however, the case advanced under the heading is not really one of interpretation or construction at all but is to the effect that the inspector erred in finding condition 4 to be a condition precedent going to the heart of the planning permission.

Mr Kingston’s submissions ran along the following lines. Sullivan J, at [67] of Hart Aggregates, drew a distinction between cases where there is only an outline permission and cases where the failure is limited to a failure to obtain approval for one particular aspect of the development. The 1974 planning permission was not an outline permission but a full permission with a very significant level of detail, and this was a case where approval was lacking only for one particular aspect. The details of the access covered by condition 3, including the incline of the drive and its level at the commencement of the car parking area serving the proposed flats, were shown on an approved plan (i.e. approved by the planning permission) which was described by the inspector as self-contained and capable of implementation without the need for any further approval apart from discharge of any necessary conditions precedent. As to condition 4, the approved plans for the flats effectively determined the ground floor levels referred to: they fixed the height of the block of flats, the position of the roof-line relative to the point of the pitched roof of the existing neighbouring building, and the position and fall of sewage water and foul drainage pipes, as well as the garaging and the layout of the car parking area. They therefore left very little, if any, room for debate about ground floor levels in the context of the further approval to be obtained under condition 4. Indeed, the purpose of condition 4 was, in effect, not to fix the floor levels but to ensure that building commenced in such a way that the details shown on the approved plans were adhered to.

Mr Kingston submitted that the inspector failed to engage with the approved plans and their significance. The inspector’s approach was unreasonable, and it was not open to him to find that approval of the ground floor levels was fundamental to the development permitted or that condition 4 went to the heart of the planning permission. It was also unreasonable for him to take into account the fact that ground levels were not agreed until 1982: if the levels did not go to the heart of the permission, it did not matter when they were finally agreed, and in any event the nature and extent of discussions preceding the agreement were not known. Another complaint about the inspector’s decision was his reference to the existence of a conservation area and the adjacent listed building: there was no conservation area until 1975, the building was listed in the same year, and there was nothing before the inspector to show that the exercise was under way at the time of the 1974 planning permission.

A further element in the submissions was that condition 3 expressly required that, before any work was commenced on the flats, the access should be formed. It was the commencement of the access works that was found to be sufficient to amount to implementation of the planning permission. It would make a nonsense of the permission to construe it in such a way that the access works could not be a lawful implementation because of non-compliance with condition 4, which related to something that the permission required should come later in time, i.e. the building of the flats. That, too, made it perverse to conclude that condition 4 went to the heart of the permission.

Similar arguments were put to Mitting J. He rejected them. In my judgment, he was correct to do so, for a number of reasons.

First, the contention that the approved plans left little, if anything, to be approved in respect of ground floor levels was not raised in these terms before the inspector. Mr Kingston sought to explain why that was so, and in the circumstances I do not rely on it as a bar to the point being advanced before the court. The fact is, however, that the inspector was plainly in a better position than the court to assess the matter, not only because of his greater expertise in the interpretation and assessment of plans of this sort but also because he is bound to have had a better feel for the overall context and the site itself, which he had visited. The court should therefore be very cautious about acceding to an invitation to conclude, on the basis of its own examination of the plans, that the inspector fell into error in making the finding he did as to the importance of condition 4.

Secondly, I found the exercise based on the plans unpersuasive in any event. It is true that a lot of relevant information can be gleaned from them, but I accept the submission of Mr Brown for the Secretary of State that they do not define ground floor levels with sufficient certainty to make good Greyfort’s case. They do not show the actual ground floor levels, and the process of comparison between the proposed block of flats and the existing building does not enable those levels to be determined with precision.

Thirdly, as Mitting J observed, the local planning authority had possession of the plans (and approved them by the grant of the planning permission), yet must be taken to have regarded the setting and agreement of ground floor levels as a matter of considerable importance. The very fact that condition 4 was included at all in this short planning permission indicates the importance attached to it. The matters referred to by the inspector at [130]-[131] of his decision letter help to explain why that was so. The proposed development was plainly in a sensitive position, on a site with a very steep gradient (an “extreme topography”, as the inspector described it), in an area of sufficient character to qualify as a conservation area and adjacent to a building of sufficient character to qualify as a grade 2* listed building (even if the formal status of conservation area and listed building were not conferred until the following year). The fact that ground levels had been a reason for refusal of earlier applications on the site, and the time subsequently taken to agree the ground levels for the proposed development, were also considerations to which the inspector was entitled to have regard. Everything points to condition 4 as having been included, with good reason, as more than a mere formality or simply as a way of ensuring that the building was built in accordance with the plans already approved.

Fourthly, the local planning authority was in my view reasonably entitled to treat the ground floor levels of the building as a matter of sufficient importance to justify the inclusion of a condition prohibiting the commencement of any work on the site, including access work, before the levels were agreed. By condition 4 it chose wording plainly intended to achieve that result. I can see no good reason for declining to respect its judgment on the point.

I would therefore also reject Greyfort’s case under ground 2.

None of the arguments advanced before this court has come near to persuading me that the inspector fell into legal error in concluding as he did that the planning permission was not lawfully implemented. Condition 4 was a clear, express prohibition on the commencement of any work on the site before the ground floor levels of the building had been agreed. The inspector was entitled to find that those ground floor levels were fundamental to the development permitted and that the condition went to the heart of the permission. The access works were carried out in breach of the condition. They fell squarely within the Whitley principle, on the basis of which they could not constitute a lawful implementation of the planning permission. None of the recognised exceptions to the Whitley principle applies. There is nothing in the reasoning of Sullivan J in Hart Aggregates to suggest that the principle should not be applied in circumstances such as these. Application of the principle does not produce absurd results or tend to frustrate the underlying purpose or policy of the legislation. On the contrary, the conclusion reached through application of the principle strikes me as an entirely sensible one on the facts.

I would dismiss the appeal.

I agree.

I also agree.