The basics #11 - *before* we begin
It’s been another post-apocalyptic week for planning reform. You want 3 quick hits? Well, here they are:
In the frantic blame-fest which followed the Chesham and Amersham by-election (it's planning wot lost it), a certain ex-Tory leader called planning reform Boris Johnson’s poll tax (which I don’t think was meant as a compliment), and Labour proposed an opposition motion calling on Government “to protect the right of communities to object to individual planning applications”. Because, apparently, so we’re told, that’s all communities do. When it comes to planning. They “object” to things. Sigh. Anyway, the motion was passed 231 - 0. So things aren’t looking peachy for that core idea in the Planning White Paper to designate “growth areas” (which, as you may remember from my summary here, would’ve conferred planning permission upon the adoption of a local plan).
And how about the White Paper’s other really big idea. The one where we’d essentially create a national housing plan: see my quick summary here. Top-down, binding housing targets imposed by the Ministry on each local authority. Whether the Government sticks to it is, if you ask Philip Barnes - veteran of this blog - “the biggest planning policy question for decades”. Ah, well. Time moves on. And, according to this weekend’s papers, Ministers are thinking about shelving that one too. [A brain-teaser for you: what do you get if you take the White Paper proposals, then subtract (a) growth areas, and (b) binding housing targets? Something that looks, I fear, just a little bit familiar].
How about the recommendation in the report on “The future of the planning system in England” from the Housing, Communities and Local Government Committee that “a review should examine the purpose of the Green Belt, including whether it continues to serve that purpose, how the public understand it, what should be criteria for inclusion, and what additional protections might be appropriate”? Well, that’s not happening either. Sigh. Chris Pincher’s confirmed that “we will not be accepting the recommendation in the Housing, Communities and Local Government Committee’s report for a wholesale review of the green belt”.
In a fascinating and powerful piece this week, Nicholas Boys Smith urges Government to “face down the enemies” of planning reform. He identifies 2 enemies: NIMBYs (who we’re told to “love”), and “consultants and lawyers make a good living out of the current chaos”. Now, I don’t quite know who he had in mind with that bit about lawyers. 😬. I may be a lawyer (guilty). But I do, at least, try my darndest to maintain this blog as an anti-chaos zone. Still. If you ask me, planning reform’s deadliest enemies are the ones Nicholas Boys Smith doesn’t mention: Conservative MPs. And our greatest practical challenge is another thing he doesn’t mention: funding local authorities properly.
Almost a year on from “Planning for the Future”, 44,000 consultation responses, 1 Queen’s Speech and a by-election defeat later, the Government still hasn’t told us what it actually intends to do about planning reform. The wait goes on. Tick tock.
Which means we should stop banging on about reform. Right? At least for 5 minutes. Put up our feet. Turn the kettle on. And refresh ourselves with a clarifying draft of #planoraks basics. Ok. Right. Here we go…
Conditions. Pre-commencement conditions, to be more exact. And in particular, ❤️ conditions ❤️. Which is to say, conditions which “go to the heart” of a permission. What’s all of that about? And why does it matter?
Come with me on a rip-roaring journey, friends, and we will get there - I promise - in 10 mostly pain-free steps:
Prologue: how do we interpret planning conditions? For a really useful synthesis of the run of recent cases, check out DB Symmetry v Swindon from §60. In a nutshell, the court asks itself “what a reasonable reader [aka the judge!] would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole”.
That’s to be done with regard to “the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense”. Ah, common sense. That trait for which we lawyers have been so celebrated and beloved.
Some conditions are pre-commencement (e.g. development shall not begin until…). Now. This is where it gets sticky. On what beginning a permission actually looks like, can I refer you to my very first post from last year here. But the main point for today is that, however big a trench you dig, development which itself amounts to a breach of planning control (i.e. by breaching one of these pre-commencement conditions) cannot normally “begin” a development.
So if a condition requires you to do something pre-commencement... and you don’t do that thing… but you start digging anyway… well, my friend, you have not lawfully begun your consent. Not normally. Which means you may be on the receiving end of an enforcement notice. And/or, something which may be more troubling still, your consent may expire unimplemented. The deadline for commencing it may pass. Midnight arrives, and the permission turns into a pumpkin. You didn’t use it, which means you lose it. Or do you? Because… as ever, there are exceptions…
Here’s a couple of examples of these exceptions: if you apply to discharge a pre-commencement condition in time (i.e. before a permission expires) and start digging in time, but then the condition is only discharged later and after the deadline… you may be in the clear. That was the 1992 case of F. G. Whitley & Sons (too old for Bailii, but summarised here). Because once the condition’s been discharged, even if it’s discharged a bit late, the authority can’t reasonably enforce any more. In another case (R. v Flintshire CC - also too old for Bailii), the condition had been complied with in substance, but the paper work showing the authority’s formal approval was missing. Again, you’re in the clear. Permission begun.
What’s the thread which ties the examples together? In Hammerton, Mr Justice Ouseley said that the real test is whether enforcement against the breach of condition would be irrational. If so, then the development is effective to commence development even though it had originally breached a condition.
In Hart Aggregates, Mr Justice Sullivan took things a step further. He said that not all pre-conditions are equal - some of them are true conditions 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”. He drew a spectrum…
On one end of the spectrum, you’ll have cases where the breach of pre-commencement condition is limited to a failure to obtain approval for one particular aspect of the development. If it ain’t too major, then “common sense suggests that the planning permission has been implemented, but there has been a breach of condition which can be enforced against”. There it is, again. Lawyers laying claim to common sense. This rarely ends well.
On the other end of the spectrum, there’ll be cases where all you have is a permission in principle because “no details whatsoever have been submitted”. And in that kind of case “common sense suggests that the planning permission has not been implemented at all”. How do we tell which kind of case is which? We can’t, really. Not with any certainty. It’s a question of planning judgment. Plus, of course, it’s one for our dear friend: common sense.
For a more recent distillation of these points, have a look at Meisels, where the High Court said that:
“The question whether a condition "goes to the heart of the planning permission" is not merely a matter of construing the grant of permission. The grant may give reasons why the condition is imposed; but those reasons cannot resolve the question by themselves. Rather, the question can be answered only by a fact-sensitive enquiry into the terms of the condition in the context of the permission, and the permission in its planning context. In other words, this question is a matter of planning judgment. It is not for the Court; it is for the Inspector; and unless the Inspector's decision on the issue is at fault in a Wednesbury sense, the Court will not intervene.”
So. Why does any of that matter? Why do we need to look very carefully at pre-conditions? Let me end with a cautionary tale from last Friday:
An appeal decision from Wiltshire (full disclosure: I acted for Wiltshire). Permission had been granted on appeal back in 2015 for a housing scheme in Corsham for 150 homes and some offices. But - and here’s the rub - the site’s on top of a mine. Which produces some of that glorious Bath Stone. But does so at pretty noisy volumes. So the 2015 Inspector imposed some conditions on noise and vibration (the wording of which the parties had agreed by the parties at the time) to make sure that foundation designs for both the homes and “noise sensitive buildings” were submitted to the Council and approved before any development started.
Deadline for starting the development? 2018. And before then, the developer installed a manhole and knocked down part of a wall under the permission. Which is, in theory, enough to kick off your consent. But of course, before that date passed, the idea was also to get those foundation designs approved. That’s where things went wrong.
So, was this a pre-commencement condition? After a very detailed and interesting discussion of the cases, yes, said the Inspector, it was. Was it a true condition precedent which went to the heart of the consent? Yep. That too. The condition covered, the Inspector thought, “very significant matters” which covered “living conditions of those who live and work in the development and preventing the sterilisation of mineral reserves”. And was there an exception (along the Whitley lines above) i.e. that the application to discharge the condition was made within time, but could be granted out of time, which meant the development had been lawfully commenced? Nope. Because on the facts, the developer had omitted even to seek approval for the foundation designs of “noise sensitive” buildings other than the houses (aka the offices).
The result? A very hard fought consent for 150 homes falls away. And not 1 but 2 planning inquiries later, the site moves all the way back to square 1.
So do take care, friends. When it comes to the perilous business of interpreting pre-commencement conditions. And particular those ❤️ conditions ❤️ which go to the heart of matters.
In the meantime, of course, COME ON ENGLAND. Stay well, #planoraks, and most of all: keep on planning.
