ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RICHARDS
LORD JUSTICE LEVESON
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Paul Brown QC (instructed by The Treasury Solicitor) for the Secretary of State
The second Respondent did not appear and was not represented
Hearing date : 20 June 2011
Crown Copyright ©
Lord Justice Richards :
"The Torbay County Borough Council hereby grant permission to carry out the development described in the application dated 10 September 1973 and the plans and drawings attached thereto ... brief particulars of which are as follows: 19 Flats, Curtilage of Park Hall, Park Hill Road, Torquay.
Subject to the following conditions:
(1) That the development hereby permitted shall be begun not later than the expiration of the period of five years commencing on 25 March 1974.
(2) Trees and shrubs shall be planted in accordance with the scheme to be submitted to and approved by the Local Planning Authority before any part of the development is commenced ….
(3) Before any work is commenced on the flats hereby permitted the access including visibility displays shall be formed and laid out to the satisfaction of the Local Planning Authority.
(4) Before any work is commenced on the site the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing."
The stated reason for conditions 2 to 4 was: "To ensure the satisfactory development of the site".
The Whitley principle
"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question: are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities."
"The worked out areas shall be progressively backfilled and the areas restored to levels shown on the submitted plan or to a level to be agreed by the Local Planning Authority in accordance with a restoration scheme to be agreed by the Local Planning Authority before extraction is commenced."
No such restoration was ever approved. Yet the quarry was worked for over 30 years, during which time all parties proceeded on the basis that mineral extraction was taking place pursuant to the 1971 permission. Only in 2003 did the local planning authority express the view that the failure to obtain approval for a restoration scheme before the commencement of development meant that the permission had never been validly implemented and had therefore lapsed.
"58. Going back to first principles, the starting point should be the proposition that there is no scope for implied conditions in a planning permission. If a local planning authority wishes to impose any obligation upon an applicant by way of a requirement or prohibition, it should do so in express terms …. The need for a local planning authority to spell out any 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.
59. If condition 10 is read in the context of the planning permission as a whole, it is simply concerned with the back-filling and restoration of the worked out areas. Other conditions govern the removal of topsoil and overburden and the extraction of the limestone. If Durham County Council had wished to prohibit any extraction before a restoration scheme for the worked out areas was agreed, it could have said so by imposing a condition expressly to that effect, similar in form to condition 2 in Whitley, 'No extraction shall take place except in accordance with a restoration scheme to be agreed …'; or it could have imposed the standard form of conditions that are imposed on grants of outline planning permission: 'details of [a restoration scheme] shall be submitted to and approved by the Local Planning Authority before any development takes place'.
60. Such a prohibition should not be implied merely because a condition, which is apparently concerned not with extraction but with the back-filling and restoration of the worked out areas once extraction has been completed in those parts of the quarry, requires a restoration scheme to be agreed 'before extraction is commenced'.
61. Condition 10 is a 'condition precedent' in the sense that it requires something to be done before extraction is commenced, but it is not a 'condition precedent' in the sense that it goes to the heart of the planning permission, so that failure to comply with it will mean that the entire development, even if completed and in existence for many years, or in the case of a minerals extraction having continued for 30 years, must be regarded as unlawful.
62. In my judgment, the principle argued for by the defendant applies only where a condition expressly prohibits any development before a particular requirement, such as the approval of plans, has been met. Condition 10 is not such a condition. If it had been breached 34 years ago, the effect of the breach would have been to render any restoration in breach of condition, and therefore unlawful. Other activities permitted by the 1971 permission, such as extraction, would not have been rendered unlawful."
"67. For the reasons set out above, I believe that the statutory purpose is better served by drawing a distinction between those cases where there is only a permission in principle because no details whatsoever have been submitted, and those cases where the failure has been limited to a failure to obtain approval for one particular aspect of the development. In the former case, common sense suggests that the planning permission has not been implemented at all. In the latter case, common sense suggests that the planning permission has been implemented, but there has been a breach of condition which can be enforced against. I appreciate that these are two opposite ends of a spectrum. Each case will have to be considered upon its own particular facts, and the outcome may well depend upon the number and the significance of the conditions that have not been complied with. Provided that the Court applies Wednesbury principles when considering these issues, there is no reason why it should usurp the responsibilities of the local planning authority."
"90. Applying the Hammerton approach, if I had concluded that condition 10 of the 1971 permission was a 'condition precedent' of a kind to which 'the Whitley principle' applied, I would have concluded that there had nevertheless been an effective implementation of the 1971 permission. I would have reached that conclusion on the basis that, limestone having been extracted from the original quarry for some 34 years and the restoration scheme mentioned in condition 10 having been overtaken by the restoration provisions in the 1989 and 1996 permissions, it would be both irrational and an abuse of power for the defendant now to commence enforcement action …."
The inspector's decision
"128. I have found that condition 4 of the 1974 permission was not discharged. It is in my view a condition precedent that does go to the heart of the 1974 permission which is described as '19 flats' on the face of the decision notice, rather than anything to do with the access, parking or other elements of what is shown on the approved plans. I consider that the ground floor levels are fundamental to the development thus permitted rather than merely being a minor component such as restoration after extraction or, for example, a detail of the external finish of the flats such as facing materials. On the basis of Whitley the specified operations contravene condition 4 and so cannot commence the development authorised by the 1974 permission.
129. I acknowledge that the 1974 permission was a full application rather than outline. However this was the situation in Henry Boot, albeit following approval of reserved matters in connection with outline permission, which was a Court of Appeal decision. So whilst I note the obiter comments of Sullivan J in Hart Aggregates to the contrary , he does acknowledge that each case will have to be considered on its own facts and that will properly be a matter for the decision maker, which is consistent with Hammerton. I fully concur that there is a spectrum between the two extremes but I see no reason to see why my conclusion on this point is Wednesbury unreasonable.
130. In reaching this view I have noted the specific example of floor levels that Sullivan J gives in  of Hart Aggregates, but the reality is that the Court of Appeal in Henry Boot was a case in which many dwellings had been erected without details of finished floor levels. At Park Hall the Council has set out reasons why the condition is significant in planning terms and I agree with the thrust of that analysis. The site is in a conservation area which provides a backdrop to the 'Jewel in the Crown of the English Riviera', adjacent to a Grade 2* listed building, the trees on the site are subject of a [tree preservation order] and the gradient across the site is 2 to 1. Whilst I accept that such considerations are not relevant to my determination of this appeal they do underline that the levels condition goes to the heart of the permission because of the sensitive context of the site and its extreme topography.
131. Comparison between drawing 14 approved pursuant to the 1974 condition and drawing No 14E approved as part of later permission No 82/2376 shows existing ground levels were inaccurate and, in effect, unknown in 1974. They were not resolved before 1982. Ground levels, giving rise to the height of the building, were cited as a reason for refusal of earlier applications on the site. In my view this underlines why the levels condition (No 4) was so crucial on the 1974 permission."
"141. … For these reasons it is necessary to look at each case and decide, amongst other things, how crucial the condition is to the development permitted. Where, as in this case, it goes to the heart of the development permitted then in my view works undertaken are not relevant to the planning permission, and thus must be ignored for the purpose of adjudicating whether that planning permission has been lawfully implemented.
147. Notwithstanding my conclusion that works were carried out … sufficient to amount to a commencement of development within the meaning of s.43 of the 1971 Act, I have found that condition 4 is a condition precedent that was not expressly discharged at any stage and therefore the development was not lawfully implemented prior to the material date."
"There is in any event, in my judgment, no material difference between a condition which expressly prohibits development before a particular matter is approved and one which requires a particular matter to be approved before development commences. The effect is the same."
Lord Justice Leveson :
Lord Justice Maurice Kay :