England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20th August 2008

1. JUDGE WAKSMAN: This is an appeal by Bedford Borough Council ("the Council") from a decision of an inspector appointed by the Secretary of State for Communities and Local Government ("the inspector") made by a letter of 15th November 2007. In it he allowed an appeal by the landowner, Mr Murzyn, the second defendant in these proceedings, from a decision of the Council refusing the grant of a certificate of lawful use or development. The property in question is The Barn, West End Farm, Stevington in Bedford ("the Barn"). The application to the council was made under section 192 of the Town and Country Planning Act 1990, the appeal to the inspector was made under section 195 thereof and the appeal to this court is made under section 288 thereof.

The issue

2. On 28th January 1985 the council granted detailed planning permission to Mr Murzyn for the conversion to a dwelling of the Barn, which was a thatched barn. Condition 2 of the permission was that the development "shall be begun on or before the 28th day of January 1990."
3. Some works in relation to the development had been carried out in 1986. It is common ground that for the purpose of section 56 of the 1990 Act, sufficient work to the Barn had been done to constitute the beginning of the development. Without more, therefore, time in relation to the permitted development stopped running and the planning permission had not lapsed. However, there were two material conditions attached to the planning permission and they are these. First, condition 3 stated that:

"Before the development is commenced a landscaping scheme to include all hard surfaces and earth mounding shall be submitted for approval by the District Planning Authority, and all planting thereby approved shall be carried out to their satisfaction by a date not later than the end of the full planting season immediately following the completion of that development."

It is not necessary for me to recite further from condition 3.

4. The reason given for the imposition of condition 3 was "to enhance the appearance of the proposed development". Condition 4 was that:

"Details of all boundary treatments are to be submitted to and approved by the District Planning Authority, prior to the commencement of development."

The reason given for this condition was "to ensure a satisfactory standard of development."

5. It is common ground that the reference to "all boundary treatments" means any boundary treatment that may be intended. It did not follow that there was to be a boundary treatment.
6. The contention of the Council in refusing the certificate notwithstanding the beginning of the development in time, as I have indicated, was that such works were in breach of those two conditions of the consent. The question therefore was whether those breaches of condition rendered the commencement of the development unlawful, under the principles laid down in the Court of Appeal decision of Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 185. If so, no development was commenced for these purposes within the time limit and no certificate for lawful use could be granted. If the development was not to be regarded as unlawful, however, the certificate should be granted.
7. The council refused a certificate on the grounds that the development was unlawful, but the inspector reversed that decision. Hence, the present appeal to this court.

Non-compliance with the conditions

8. Before the inspector it was contended that in substance conditions 3 and 4 had been complied with. Compliance in substance would have prevented the development from being regarded as unlawful within the Whitley principle. However, having considered the written and oral evidence adduced before him, the inspector concluded that there had not been substantial compliance (see paragraphs 14 to 23 of the decision letter). Accordingly, it was necessary to see if the Whitley principle in truth applied at all and if so whether any other exception applied.

The Whitley principle

9. This is contained in the second of two paragraphs of the judgment of Woolf LJ (as he then was) which I propose to read. They start at page 301 of the report, where he says this:

"Mr Sullivan contends that the decisions clearly establish that a planning permission can only be implemented for the purposes of complying with both express and deemed conditions containing time limits, by a development which is not carried out in contravention of planning control (which for the present purposes means not in contravention of the conditions attached to the planning permission). Alternatively, he contends that conditions 2, 3 and 4 of the developer's planning permission properly construed take effect as conditions precedent, such that a failure to comply with their terms prevents the lawful implementation of the permission.

Although, in the light of the authorities, Mr Sullivan was right to divide his submission in this way, in my judgment the second submission does not add anything to the first submission and that it is not necessary or helpful to try to determine whether or not the conditions contained in a planning permission are properly capable of being classified as conditions precedent. 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. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission. The position is the same so far as regulation 7 and condition 11 are concerned. The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission."

The cases before Hart Aggregates

10. The Whitley principle has been the subject of considerable further judicial comment and analysis. It is not necessary for me to conduct an exhaustive review of that case law. It suffices for present purposes for me to refer to the following cases which seem to me to be of relevance to the issues presently before the parties.
11. In Leisure Great Britain Plc v Isle of Wight Council (2000) 80 P&CR 370, the two conditions were these. Condition (8):

"No works shall be commenced on site until chestnut pale fencing or other type of fencing approved by the local planning authority ... shall have been erected around each tree ... Such fencing shall be maintained to the satisfaction of the local planning authority during the course of the development operations."

Then condition (12):

"The sequence of operations during the implementation of the permission hereby granted shall be as may be approved by the local planning authority and a programme of working shall be submitted to the local planning authority for approval before any operations are commenced on site."

12. It was accepted in that case that neither condition had been complied with. Keene J (as he then was) rejected the notion that the Whitley principle could only apply where there was an absence of detailed approval for the operation in question under an outline permission. He referred to cases where the principle has been applied where the breach was of a condition not relating to the underlying operation itself. At page 377 he said that, as a matter of authority and logic:

"... I cannot see that any distinction can be drawn between cases where the breach of condition consists of a failure to obtain detailed approval for the works alleged to amount to a material operation and those cases where the non-compliance is with some other condition on the permission which has to be met before development begins. There is a breach of condition and hence a breach of planning control in both cases."

13. So the subject of the matter in question did not have to be the operation itself in order for non-compliance to be relevant as to the question of the lawfulness or otherwise of the commencement of the operation. That said, the main thrust of the argument in Leisure GB concerned the scope of the exceptions to the Whitley principle, it having been engaged. In the context of that decision, Keene J firmly rejected the notion of some broad argument against unlawfulness based on looking at all the circumstances of the case (see page 378). Ultimately, however, all that was submitted to him was that there was a new and further exception to the Whitley principle, a submission which he rejected.
14. The case of R (Hammerton) v London Underground Ltd [2003] JPL 984 was also essentially concerned with the application or otherwise of the exceptions to the Whitley principle once breach of condition had been found. But it is worth noting the terms of the three relevant conditions. Condition 12 said this:

"No work shall commence on site until full particulars of the location and method of measures to be taken to minimise the effect of vibration from the operation of the Line on adjacent listed buildings have been submitted to and approved by the relevant local planning authority."

15. Condition 21 was that:

"The development shall not commence until the exchange land described in Art.30 of the Order had been made suitable for use as open space by:

(i) the removal of redundant viaduct arches and other buildings; ..."

16. Finally, condition 23 provided that:

"No development shall commence on the land bounded by Bethnal Green Road, Wheler Street, Shoreditch High Street and the proposed Bishopsgate station or on land in Allen Gardens until a landscaping scheme for those sites has been submitted to and approved by the relevant local planning authority."

17. Ultimately, the relevant condition became condition 21, because this was the condition which was found in fact to have been broken.
18. In the course of considering exceptions to the Whitley principle that might be available, Ouseley J said this at paragraph 135:

" It is accepted by LUL that the circumstances in relation to condition 21 do not fall within the Whitley specific exception or within any other case in which an exception to the general rule has been allowed. While conceding that a Court should be slow to acknowledge other exceptions, Mr Barnes submitted that a further exception, which he described as largely procedural, should be recognised. He contended that a Court should not declare that a planning permission has lapsed where the breach of condition is minor and cannot affect the substance or purpose of the conditions in question and no enforcement action is proposed."

19. In paragraph 136 Ouseley J rejected that. He said that it was not consistent with the allocation by statute to the planning authorities and not to the courts of any task of assessing the planning significance of any condition and of its breach. He added that "it is an invitation, which I decline, to usurp the functions of the planning authorities." He went on to say there was no other sound basis for making that exception to the general rule.
20. In the case of Henry Boot Homes Ltd v Bassettlaw DC [2003] 1 P&CR 23 there was a variety of conditions that had been broken. They are all set out in paragraph 12 of the report. It was common ground that the Whitley principle was engaged. Again there were areas of debate, but these concerned the exceptions to the principle. Some of the conditions began with the words "no dwelling shall be commenced until", for example condition 3, the condition being "the extension of Heathfield Gardens had been constructed ..." Another form of wording was "before development commences precise details of the finished floor level ... shall be submitted to and agreed" (condition 5).
21. There is also the case of Oakimber Ltd v Elmbridge Borough Council (1991) 62 P&CR 594, but I shall refer to this case in context below.

Hart Aggregates

22. Against all of that background, I have to consider the case of R (Hart Aggregates) v Hartlepool Borough Council [2005] JPL 1602. This was heavily relied upon by both sides before the inspector and indeed before me. It also formed the fulcrum for the inspector's conclusions which are now challenged. I have been treated to a detailed exegesis of certain parts of the extensive judgment of Sullivan J that would not go amiss in the interpretation of a technical piece of legislation. When it is realised that all the passages in question were obiter, this level of reliance and analysis may seem all the more surprising, but on the other hand this is, in my judgment, a case where a far more focused and detailed examination is undertaken as to the true nature and effect of planning conditions which have to be satisfied before the start date of the development in question, than has appeared in many other cases.
23. In this context, it is important to make plain that on this appeal neither side has contended that the approach taken by Sullivan J in Hart Aggregates was itself wrong in law, although they have differed to some degree as to what that approach entailed. In particular, the Council relied upon that decision before me, just as it had before the inspector.
24. By way of a preliminary observation, it is clear from the judgment of Sullivan J that on the question of whether a development has been lawfully commenced or not, there are essentially three questions: (1) has there been a breach of condition (stage 1)? (2) If so, is the effect of that breach of condition such as to render the development as a whole unlawful (stage 2)? That question could be paraphrased in this way: has the Whitley principle been truly engaged? (3) If so, do any of the exceptions to the Whitley principle apply, such as irrationality, abuse of power on the part of a planning authority if it sought to enforce, or compliance in substance (stage 3)?
25. As I shall explain hereafter, it is important to identify those parts of the judgment of Sullivan J which deal with each stage. What is clear is that he dealt with all three, see paragraph 91 of his conclusions where he states:

"... (a) condition 10 was complied with; (b) if condition 10 was not complied with, it is not a condition precedent to which the Whitley principle applies; and (c) if the Whitley principle should be applied to condition 10, the 1971 permission was implemented because ... the quarry is immune from enforcement action."

26. It is because Sullivan J found that there was compliance with condition 10 (i.e. stage 1) that his findings at stage 2 and stage 3, although equally supportive of the claimant's case, were obiter.
27. Hart Aggregates concerned planning permission granted in 1971 to a quarrying company for the extraction of limestone, so the principal activity permitted was extraction. Condition 10 provided thus:

"The worked out areas shall be progressively back-filled 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."

28. The case was a very unusual one because although the condition was not complied with, extraction, purportedly pursuant to the permission, had been carried on for 34 years without difficulty. It was only when the claimant sought to change the conditions applicable to the original planning permission that the Council said it could not do so because the original planning permission had lapsed. The reason it had lapsed, according to the council, was that there was no lawful commencement of extraction as a result of the breach of condition 10. As a result the claimant applied to Sullivan J for a judicial review of that decision of the council.
29. I now will set out a number of passages from the judgment of Sullivan J, all dealing in my view with stage 2. In paragraph 47 he referred to the case of Whitley and set out there the four conditions which applied. Condition 2 stated that:

"No working shall take place except in accordance with a scheme to be agreed with the local planning authority or, failing agreement, as shall be determined by the Secretary of State and such scheme shall among other matters include provision for

(a) the order, direction depth and method of working ..."

Condition 3 was that:

"Progressive restoration of the site shall take place in accordance with a scheme to be agreed with the local planning authority or, in default of an agreement, to be determined by the Secretary of State, such scheme to be agreed or determined before working takes place, ..."

Condition 4 stated that:

"Landscaping of the site shall take place in accordance with a scheme to be agreed with the local planning authority or, in default of an agreement, to be determined by the Secretary of State, such scheme to be agreed or determined before working takes place."

Condition 11 was the express commencement date condition.

30. In paragraph 49 Sullivan J observed that the 1971 permission in the case before him did not contain any condition which stated in terms:

"'no extraction shall take place except in accordance with a (restoration) scheme to be agreed with the local planning authority before extraction takes place', as was the case with condition 2 in the Whitley case. Nor, since an outline planning permission cannot be granted for mining operations, is there any condition in the 1971 permission which requires the approval of all reserved matters before any development may commence."

31. In paragraph 50 Sullivan J noted that:

"Mr Porten submitted that no distinction could properly be drawn between condition 10 in the 1971 permission and condition 2 in the Whitley case; it mattered not whether the words 'no extraction shall take place before a restoration scheme has been agreed' were used, or whether the condition required a restoration scheme to be agreed 'before extraction is commenced'. The practical effect was the same in both cases: if no restoration scheme was agreed, extraction was unlawful. ... He submitted that failure to comply with any 'condition precedent', such as condition 3 or 4 in the Whitley case or condition 10 in the 1971 permission, meant that the planning permission in question would not have been implemented."

32. In paragraph 51 Sullivan J stated this:

"This submission illustrates the dangers of taking judicial dicta out of the context of a particular case and applying them to very different circumstances. Given the clear terms of condition 2, 'No working shall take place...' it was unnecessary for the Court of Appeal to consider what would have been the effect of a breach of either condition 3 or condition 4 alone in the Whitley case. Work had barely commenced at the Whitley site, so the Court of Appeal did not have to consider the question: what would have been the effect of non-compliance with either condition 3 or condition 4 if extraction had proceeded, in compliance with all of the other conditions in the 1973 permission, for over 30 years? If by some oversight a landscaping scheme had not been agreed before working commenced, would that have meant that there had been 30 years of unlawful mineral extraction?"

In paragraph 52 he went on to say:

"If the object of judicial intervention is to give effect to the purpose of the legislation, the answer to that question must surely be no. Since conditions 3 and 4 in Whitley related specifically to restoration and to landscaping respectively, the legislative purpose would be better served by confining the extent of the unlawfulness to any restoration or landscaping works carried out in breach of those conditions, rather than by a conclusion that all of the quarrying operations over the last 30 years had been unlawful."

In paragraph 54 the learned judge observed that:

"The defendant contends that any condition, such as condition 10, which requires some action to be taken (plans agreed or works done) before development is commenced is a 'condition precedent', the breach of which will mean that the planning permission in question will not have been implemented."

33. Sullivan J then gave an example in paragraph 56 of such a contention:

"To take another example, canvassed in submissions, where planning permission is granted for the erection of a large dwelling house. Detailed plans accompany the application. All of the details are satisfactory, but the local planning authority do not like the design of one of the dormer windows. A condition is therefore imposed upon the planning permission requiring revised details of the dormer window to be submitted to and approved by the local planning authority before development commences. The development commences. No revised plans of the dormer window are submitted and the omission is realised only when the house is complete. Has the entire house been constructed without planning permission, or has there simply been a breach of the condition in respect of the dormer window? Consistent with the defendant's approach to non-compliance with conditions precedent, Mr Porten submitted that the former answer was correct."

He said in the next paragraph:

"I do not accept that such an outcome would give effect to Parliament's intention in enacting the planning code insofar as it relates to the commencement of development authorised by planning permission. The 1990 Act draws a clear distinction between development without planning permission and development in breach of condition; see s.171(A)(1)(a) and (b). It is important that that distinction is not blurred by an indiscriminate use of the judge-made term 'condition precedent'."

34. One then turns to the following key passages. Paragraph 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, because failure to comply with the condition may, ultimately, lead to prosecution for failure to comply with a breach of condition notice and/or an enforcement notice; see ss.179 and 187(A) of the 1990 Act. 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 some 34 years ago, the effect of that 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."

35. It is neither proportionate nor necessary in my view to undertake a line-by-line analysis of these important passages. In my judgment, their effect is clear enough and may be summarised thus:

(1) a distinction must be drawn for stage 2 purposes between (a) a condition which in truth merely stipulates that something must be done before the time when the development commences, and (b) a condition which in truth goes further and stipulates that the development cannot commence unless the condition is fulfilled. A breach of condition (a) enables the local authority prima facie to take enforcement action to remedy the non-performance of the stipulated action, but condition (b) if broken renders the development unlawful and is therefore subject potentially to enforcement action itself, i.e. cessation of the operation in question, if it is quarrying, or demolition of the house or prevention of further work on it, if it is a permission to build. This distinction mirrors the two different forms of breaches of planning control set out in section 171(A)(1)(a) and (b) of 1990 Act (see also in the context of enforcement the observations of Ouseley J in the Hammerton case at paragraph 141 and the observations which I have already quoted of Sullivan J in paragraph 57 of Hart Aggregates itself).

(2) The Whitley principle is only engaged where there is a breach of a class (b) condition. That is because only here can the development as a whole properly be described as unlawful, and it is only if the development as a whole is unlawful that its commencement is deprived of effect for the purpose of running of time.

(3) It is thus necessary to examine and construe the condition carefully, to see whether it is a class (b) condition or, to put it another way, a "true" condition precedent. I interpose to say that in earlier cases this particular issue did not usually arise, since it was accepted that if there was a breach of condition the Whitley principle was engaged. Alternatively, the relevant condition was clearly a true condition precedent in any event.

(4) The paradigm example of a true condition precedent is that referred to by way of example in paragraph 59 of the judgment of Sullivan J, where he refers to a condition which began with words like "No extraction shall take place except in accordance with a restoration scheme ..." Another example would be condition 8 in the Leisure GB case or condition 21 in the Hammerton case. Provided that it is made clear enough in the condition that the development's commencement itself is truly conditional upon the fulfilment of the condition, the subject matter of the condition need not be central; i.e. not concern itself directly with the activity permitted, for example, the extraction or the building.

(5) Other wording might achieve the same result: see the example given in the last sentence of paragraph 59 of the judgment of Sullivan J. At first blush, the words here might not be appropriate to do the job required by Sullivan J, although he says clearly that they do. They seem similar to the words of condition 10, which he rejected as a condition precedent. But I think the explanation lies in the origin of the example as being an outline planning permission. Here, because everything needed to have detailed approval at the outset, the conditions were very likely to be seen as true conditions precedent in any event, and the language here is also important. It refers to before "any" development takes place. This is the language used in the condition for the outline planning permission granted in the Oakimber case. Condition 2 there was that:

"This approval is given subject to detailed plans of the layout of buildings, open spaces and drainage and particulars of the type of industries to be provided, being submitted to and approved by the Planning Authority before any development takes place."

(6) Where, therefore, there is a condition which is manifestly not about the essential subject matter of the permission, the fact that it has to be fulfilled before the relevant operation commences does not mean that the essential operation cannot begin without its fulfilment. Condition 10 fell into this category in the judgment of Sullivan J.

(7) In this regard there was considerable debate before me about Sullivan J's reference to a condition which goes to "the heart of the permission". It has clearly been seized upon to some extent in the planning world because, in the case before me, Mr Murzyn's advisers had contended in their application for a certificate that condition 10 did not go to "the heart of the permission", whereas in his response to this application on behalf of the council, Mr Connell asserted that it most certainly did. Paragraph 61 of the judgment of Sullivan J certainly gives rise at least to the possibility that if a condition was concerned centrally with the activity which is the subject of the permission, it might achieve condition precedent status even without the use of the particular language suggested in paragraph 59. Outside the context of outline permissions that might be rare, but certainly not impossible. In a detailed planning permission for extraction, for example, a condition that some aspect of the actual extraction process had to be submitted and agreed before extraction began could well fall into this category.

36. Mr Lintott, for the council, did not accept that Sullivan J was going as far as I have suggested in sub-paragraph (7) above. He placed reliance upon paragraph 62 of the judgment, quoted above. But then one also has to read paragraph 67. Here Sullivan J said this:

"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."

37. Contrary to Mr Lintott's contention, this is clearly still part of Sullivan J's stage 2 observations. See, for example, the opening words of paragraph 67. It is not part of any stage 3 analysis of applicable exceptions.
38. Paragraph 67 admits of the need to undertake a careful and possibly factual analysis of the condition in question. Equally, in my judgment, the last sentence of paragraph 67 is still part of the stage 2 reasoning. All Sullivan J was saying, in the context of the judicial review application before him, was that what he had said earlier did not mean that the court was second-guessing the judgment of the body being reviewed, i.e. the local council or the inspector, as to the proper construction of a condition, which may involve some factual considerations and judgments. The court would not substitute its own view for that of the relevant body. It was simply ensuring that the body's conclusion was not Wednesbury unreasonable.

The inspector's decision

39. The key passages here can be quoted at this point in their entirety. They are paragraphs 24 to 31 of the decision letter, where he said this:

"24. Applying the Whitley principle, a planning permission is controlled by and subject to the conditions. If the operations to begin the development 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. Again, that would appear to be the case here.

25. However, in R (on the application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin) Sullivan J stated that, 'The court should be wary of applying the (Whitley) principle in an unduly rigid fashion…' (paragraph 43) and cautioned that it was important the distinction between development without planning permission and development in breach of condition is not blurred by an indiscriminate use of the judge-made term 'condition precedent' (paragraph 57). The judgement continues, '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…' (paragraph 58). 'Such a prohibition should not be implied merely because a condition… requires a restoration scheme to be agreed 'before extraction is commenced' (paragraph 60). I take it from this that a condition precedent is a rarer animal than might be presumed and is characterised first by an express prohibition of any

development before the requirement of the condition is met.

26. The judgement went further however when it described a second characteristic of a condition precedent. It states at paragraph 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 ... must be regarded as unlawful'."

Paragraph 27 simply consists of the inspector's recitation of paragraph 67. It contains a recitation of the entirety of that paragraph, save for the last sentence. In my judgment nothing turns upon that. That was not something that had to be recited.

40. Paragraph 28 is the start of the analysis of the conditions in question. Here the inspector said this:

"28. Turning to the present case, condition 3 of the planning permission is framed such that 'Before the development is commenced a landscaping scheme …' shall be submitted for approval. And condition 4 refers to the details of all boundary treatments being submitted for approval '… prior to the commencement of development'. They thus require approvals to be obtained for landscaping and boundary treatment before the development is begun, but do not expressly preclude commencement of the development. Rather, it appears to me, the wording of the conditions enables one to identify when the breach of the condition occurred. If the details are not approved before work starts, enforcement action could be taken later to secure compliance. Applying the principles elucidated in Hart, I have concluded on my reading that neither condition is expressed in a prohibitive fashion."

41. The inspector then in paragraph 29 says this:

"29. Furthermore, the permission was for the conversion of a listed barn. The plans before me show how the building is to be laid out internally, where new openings are to be formed in the external wall of the barn, how it will be accessed. These to my mind are fundamental matters that are central to the conversion. In contrast, I regard the landscaping and boundary treatment in this instance to be peripheral matters. This is most clearly the case with condition 4 which does not in fact require any boundary treatment to be undertaken – only that details be submitted in the event that it is.

30. This is not, of course, to say that landscaping and boundary treatment were not matters deserving of consideration. Only that, as a matter of judgement, I consider conditions 3 and 4 deal with details of the development rather than its basic nature and so do not therefore go to the heart of the permission. In my view the reading of the reasons for the imposition of these conditions lends support to this conclusion. I see no reason to decide differently in light of the building's listed status."

42. In the light of what I have said above, I do not think that the inspector's analysis of the law in paragraphs 25 to 27 can be faulted. In my judgment, these paragraphs accurately convey what Sullivan J was saying. The inspector here was conducting the stage 2 examination. He correctly referred to paragraph 67 of Sullivan J's judgment in this context, because, as stated above, paragraph 67 does indeed relate to stage 2 and not stage 3. Indeed, Mr Connell's evidence looks very much to me as if it was referring to the "heart of permission" in the Schedule 2 context. He did not in his evidence purport to deal with stage 3 enforcement questions at all.
43. Paragraph 28 contains the application by the inspector of the legal principles discerned by him to the conditions in question. His conclusion was that they did not amount to true conditions precedent and so the Whitley principle was not engaged. Mr Lintott said that he was wrong in law so to have concluded.
44. I disagree for the following reasons:

(1) Neither condition states in terms that no development shall take place until a landscaping scheme is submitted and approved, or a boundary treatment (if any) is submitted or approved. Although the opening words of condition 3 may appear stronger than the closing words of condition 4, Mr Lintott did not draw any distinction between them in his submissions.

(2) Neither condition in truth can be distinguished from a condition like condition 10 in Hart itself, which was rejected by Sullivan J as a true condition precedent. Mr Lintott said that there was a key difference. Condition 10 referred only to the underlying operation of extraction, whereas conditions 3 and 4 referred to "development". In my judgment there is here no magic in the use of the word "development". One could equally have used the word "building" in conditions 3 and 4. Indeed, Mr Lintott accepted that he would still be maintaining that these were true conditions precedent if the word "building" had been used instead of "development". In truth, the use of the word "development" here was just another word for "building". In the extraction context, it may be that "extraction" is the term to be used, as opposed to "development".

(3) While the wording of conditions 3 and 4 might appear to resemble the wording for outline permissions given at the end of paragraph 59 of the judgment of Sullivan J, the difference may well lie in the use of the words "any development". And on any view Sullivan J could not have meant that any clause which contained the words "before development takes place" amounts to a true condition precedent because that would fly in the face of his conclusion on condition 10, and indeed against the whole thrust of his approach.

45. Mr Lintott's skeleton argument at paragraph 24 states this:

"The operations relied upon in this case clearly contravened conditions 3 and 4 and therefore they cannot properly be relied upon as commencing the development authorised by the permission. Because they do not comply with the planning permission they are a breach of planning control, are unauthorised and lawful subject to the considerations below under Sullivan J's issue (c)."

46. But that in my judgment begs the very question. The fact that a condition is not complied with does not necessarily render the entire development unlawful. One has to ascertain first what the nature and extent of the relevant clause is.
47. Mr Lintott also takes issue with the central part of paragraph 28 of the decision letter, which reads thus:

"They thus require approvals to be obtained for landscaping and boundary treatment before the development is begun, but do not expressly preclude commencement of the development."

He says that the inspector is contradicting himself when saying this. But in my judgment there is no contradiction. The conditions stipulate that the schemes must be applied for and agreed before commencement. If they are not approved before commencement there is a breach of the condition, but there is not the further consequence that the building cannot commence. I agree with that analysis, and if correct the Whitley principle was not engaged because the building as a whole was not rendered unlawful by a breach of those conditions.

48. If Sullivan J did not regard condition 10 in his case as a condition precedent, it is very difficult to see how conditions 3 and 4 should be regarded any differently in this case.
49. In paragraphs 29 and 30 the inspector does invoke "the heart of permission" dicta of Sullivan J. I see nothing wrong in this. In truth it is a matter of analysis, and can easily be gleaned from the words of the conditions themselves and the stated reasons for imposing them. It seems obvious that landscaping is not central to the conversion of the Barn and boundaries equally so, if the landowner should choose to have boundary treatments. Moreover, they are not separate works which of necessity must be done or approved before building can sensibly start. If paragraphs 29 and 30 of the decision letter are pure matters of analysis, I agree with them and there is no error of law here. The inspector's analysis of conditions 3 and 4 was no longer than that of Sullivan J's analysis of condition 10, nor need it have been.
50. If on the other hand paragraphs 29 and 30 are the result of some judgment on the part of the inspector, then in my view it was a judgment which he was clearly entitled to reach on the evidence before him. Mr Lintott said that the inspector on an appeal from the Council would not have the power to do this because, unlike the case of an appeal against the imposition of a condition, he is not here investigating and pronouncing upon the rights and wrongs of having the condition in the first place. I agree that he is not here undertaking that latter exercise, but it does not mean that he is prevented from undertaking a contextual analysis of what the condition means and what its effects are in terms of unlawfulness. That seems to me to be a legitimate and sensible exercise and one which follows from the observations of Sullivan J.
51. Accordingly, there was no error of law and no misdirection, nor for that matter any lack of reasons in the inspector's decision, in these paragraphs of the decision letter. On his analysis under stage 2, the Whitley principle was not engaged. It was not necessary, therefore, for him to embark on stage 3, as it would have been if he had decided that the Whitley principle was engaged, or if I had held that he ought so to have found. That being so, he cannot be criticised for not having dealt with the stage 3 enforcement issues.
52. Accordingly, I can see no basis for interfering with the inspector's conclusion and I would dismiss this appeal.
53. It remains for me to express my grateful thanks to both counsel for the excellence and comprehensive nature of their written and oral submissions.
54. Yes, Mr Tromans.
55. MR TROMANS: My Lord, I need to deal, hopefully briefly, with the issue of costs.
56. JUDGE WAKSMAN: Yes.
57. MR TROMANS: Could I ask your Lordship for an order for costs to be summarily assessed. I do not know whether your Lordship has received --
58. JUDGE WAKSMAN: I have not received a schedule, I am afraid.
59. MR TROMANS: Perhaps I can pass one up. (Handed)
60. JUDGE WAKSMAN: Has this been provided to Mr Lintott?
61. MR TROMANS: Yes, my Lord, schedules were exchanged.
62. MR LINTOTT: The costs are agreed, my Lord.
63. JUDGE WAKSMAN: The costs are agreed. You do not resist in principle the fact that the losing party ought to pay them?
64. MR LINTOTT: (Shakes head)
65. JUDGE WAKSMAN: I think that the amounts are agreed, Mr Tromans.
66. MR TROMANS: The bottom line is £8,840.
67. JUDGE WAKSMAN: I will order that the claimant do pay the first defendant's costs of the appeal summarily assessed in the sum of £8,840. If I do not say any more, the usual effect of that will be payable within 14 days.
68. MR TROMANS: My Lord, yes. I am grateful.
69. JUDGE WAKSMAN: Thank you.
70. MR LINTOTT: My Lord, I do seek permission to appeal against that judgment and you will probably anticipate the basis for that, given the way in which you have given judgment. Do you want me to address you very briefly?
71. JUDGE WAKSMAN: I am not sure that you can ask it from me, because this is a second appeal.
72. MR LINTOTT: It is listed as a Part 8 claim, is it not, so in those circumstances I think it would not be a second appeal.
73. JUDGE WAKSMAN: I may need some help on that because it may be called a Part 8 claim, but it is undoubtedly an appeal.
74. MR LINTOTT: My understanding would be that it is brought under Part 52, the first appeal would be an appeal because it is obviously contemplated by the CPR that it is an appeal. But if it is listed as a Part 8 claim and it is a Part 8 claim because the provisions of the Supreme Court Rules dictate that it is and Part 8 in the practice direction says that it is, then I would say it is not second appeal.
75. JUDGE WAKSMAN: Just a moment.
76. MR TROMANS: My Lord, Mr Lintott is on my understanding correct. The Encyclopaedia of Planning Law commentary makes it clear that an application for permission to appeal may be made to the High Court at the hearing at which the decision to be appealed is made or to the Court of Appeal. Because the procedure under section 288 is by way of statutory application rather than an appeal, it is not affected by Rule 52.13. So Mr Lintott on my understanding is entitled to ask your Lordship now for permission.
77. JUDGE WAKSMAN: If you are both agreed that, then I shall not argue against it.
78. MR LINTOTT: It does seem rather odd because it is called a 288 appeal, as my Lord says, but I think the answer is in the way the CPR has classified it as a Part 8 claim rather than providing it be brought under Part 52, because 52.13 kicks in in that situation rather than a Part 8 claim.
79. JUDGE WAKSMAN: Yes. Just one moment. (Pause)
80. As I say, if both of you are agreed that is the correct analysis then I will not demur from it.
81. MR LINTOTT: My Lord, putting it very simply, you will recall that I said that one could read the decision of Hart Aggregates in a number of ways and I submitted to you it needed to be read as being in line with the decision in Whitley, which broadly puts it that if one has development in breach of condition, in the way that Woolf LJ says at page 302, that renders development unlawful. In my submissions to you I explained why Hart Aggregates, particularly at paragraphs 59 and 67, could be read as being consistent with that. But with the greatest of respect, the way that my Lord has analysed Hart Aggregates and the way in which my Lord has looked at the way in which one determines whether or not this is a condition precedent or not is contrary to what Lord Woolf says in the Whitley case. For that reason, this being a case where these issues are obviously central and all the other decisions we have looked at, including Hart Aggregates, being decisions where the principle is open to it, it is a very important point for the local planning authority and it is one which they certainly would like to have looked at by higher authority.
82. JUDGE WAKSMAN: Yes.
83. Mr Tromans, do you want to say anything?
84. MR TROMANS: My Lord, I can address you very briefly on that.
85. My Lord, I would resist the application. The structure of the judgment of Sullivan J is clear, as your Lordship has analysed it. It is clear that the inspector did apply the correct paragraphs from that judgment and applied them correctly. The points about inconsistency with Whitley, my Lord has dealt with that in the judgment, in the sense that in Whitley and the other cases the focus was not really on the condition precedent nature of the condition, i.e. it is accepted to be a condition precedent or clearly was on its wording. As to the question of higher authority, my Lord, well, if it seems appropriate for the Court of Appeal to consider this and rule on it further, then the application can be made to the Court of Appeal and the Court of Appeal can decide whether it is a matter of such importance that it should look at it. So, my Lord, I would resist the application as it is now made.
86. JUDGE WAKSMAN: Yes.
87. Mr Lintott, I think you will have to go to the Court of Appeal for permission, simply on this basis. As a result of the express reliance by both parties on that case and the fact that emphasis was placed on the particular approach which was set out by Sullivan J in words which I think in my judgment I say was clear enough, it does not seem to me that there is any real prospect of saying that I have fallen into error in terms of my analysis of his approach, which was expressly relied upon by both sides and not to be said to be wrong in law. If the Court of Appeal take a different view about that, then no doubt they will say so. (Permission to appeal form handed)
88. It you just wait for one moment. (Long Pause)
89. Yes, I am just filling out the form. In doing so I should state the other reason why I think it is clear that there is no real prospect of success and that is that it seems to me that the question that was occupying the parties here was really whether the inspector had correctly applied the approach of Sullivan J in his analysis of the conditions in question, as to whether they were conditions precedent or not, and I held clearly that he had applied the approach correctly.
90. Thank you both very much for your assistance.
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