The perils of conditions precedent

In a recent planning appeal decision, an Inspector made important findings that should serve as a reminder that where a developer fails to apply to a local planning authority to discharge conditions, the consequence could be that their permission is no longer capable of being implemented.

The appellant had secured planning permission on 16 June 2008 from the Peak District National Park Authority for a local needs dwelling. The permission was subject to two pre-commencement conditions, one of which related to contamination. The permission was also subject to a Section 106 agreement, which restricted the future occupancy of the dwelling to local needs.

The appellant failed to discharge any of the conditions attached to the 2008 permission and proceeded to construct a dwelling (i.e. they failed to apply to the local planning authority to have details relating to the condition approved). Several years later the appellant sought to remove the local occupancy restriction associated with the permission. The question that arose at that point was: had the 2008 permission ever actually been implemented?

The point that occurred to the appeal team was that if the 2008 permission was not implemented, it followed that the local needs restriction did not apply. Additionally, as the dwelling had been constructed well over four years ago, it meant that the dwelling was immune from enforcement and was not subject to any conditions or restrictions.

Whether the 2008 permission was implemented related to whether the pre-commencement conditions ‘went to the heart of the permission’, such that they could be described as condition precedents. Essentially, if they were condition precedents, it followed that the 2008 permission was never implemented, as the conditions had not been discharged.

The appellant made an application to the Council for a lawful development certificate to confirm that the 2008 permission had not been implemented, but that the dwelling was lawful owing to it being constructed more than four years ago.

The Council refused the application and the matter proceeded to appeal.

The Inspector on appeal ultimately determined that the contamination condition was a condition precedent and thus allowed the appeal. The contamination condition said:

The development shall not be commenced until a scheme to identify and control any contamination of land has been submitted to and approved in writing by the Authority; and until the measures approved in that scheme have been implemented. The scheme shall include all of the measures (phases II and III) contained in the Derbyshire Dales District Council Pollution Control Officer’s letter to the Authority dated 25 July 2007, or in accordance with an alternative scheme that has been submitted to and agreed in writing by the Authority.

The Inspector had particular regard for the fact that during cross examination, the Council’s planning witness had conceded the fact that the condition related to whether the site was safe for human habitation and was directly related to the subject matter of the permission – i.e. a dwelling. Further, that the Council’s witness had no expertise in relation to contamination issues, but rather deferred to the district council, who advised that the condition did need to be a pre-commencement condition.

The Inspector helpfully cited relevant legal principles, including that it is established case law that “…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. Consequently, whilst in this case the contamination issue cited in the condition may not in itself have related to the actual conversion works, it is manifestly about the essential subject matter of the planning permission, which the Authority agree relates to the occupation of the land for human habitation.”

Against the specific facts of this case, the failure to discharge conditions was helpful to the appellant. However, it highlights that the failure to discharge pre-commencement conditions might mean that the permission has not been implemented, which could have significant consequences.

Appeal reference APP/M9496/X/20/3252910. Killian Garvey (barrister at Kings Chambers) was instructed by Emery Planning for the successful appellant.

Killian is a specialist planning barrister at Kings Chambers. He provides advice to and represents developers and local authorities at public inquiries, hearings and examinations and in court hearings. He was ranked second in the country in Planning Resource’s top barristers under 35 in 2021 and 12th overall in the list of planning juniors.

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