Planning permission: Conditions

Appellant commencing development in breach of conditions precedent - respondent aware of breach - whether respondent's behaviour amounting to waiver of obligation on appellant's part to comply with necessary formalities - whether appellant having legitimate expectation that development in breach of conditions permissible

Henry Boot Homes Ltd v Bassetlaw District Council: Court of Appeal (Lords Justice Brooke and Keene and Mr Justice Bodey): 28 November 2002

In 1994, the respondent council granted outline planning permission for the residential development of a site that the appellant subsequently purchased in 1995.

The appellant successfully applied, under section 73 of the Town and Country Planning Act 1990, to amend various conditions contained in the original permission.

The application took effect as a new planning permission that commenced in 1995 subject to certain time limits and containing a number of conditions precedent.

The appellant began work on the site.

Despite repeated reminders by the respondents, the appellant did not comply with the conditions precedent.

In 2000, the respondents informed the appellant that any further work at the site would be a breach of planning control, since its planning permission had lapsed.

The appellant sought a declaration that the outline permission had been validated by the work commenced prior to the expiry date, but, at first instance, the judge found for the respondents.

The appellant appealed.

It argued that the procedural irregularities were largely caused by the respondents' actions, which it claimed had given it the legitimate expectation that its development would be treated as having been commenced within the appropriate time frame.

It also maintained that the respondents' conduct amounted to a waiver of its obligation to make a formal application under section 73 of the Act to vary or discharge the conditions, and that, therefore, development could commence for the purpose of sections 56 and 93 of the Act without compliance (see FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72, and demonstrated in Percy Bilton Industrial Properties Ltd v Secretary of State for the Environment [1976] 1 EGLR 141).

David Holgate QC and Timothy Morshead (instructed by Hammonds Suddards Edge, Leeds) for the appellant; Mark Lowe QC and Jonathan Clay (instructed by Sharpe Pritchard) for the respondents.

Held, the appeal was dismissed.

The comprehensive code of planning control meant that a local planning authority did not have the power informally to waive the need for compliance with a condition.

Therefore, any legitimate expectation on the part of developers that a local planning authority could authorise developments carried out in breach of condition could arise only in exceptional circumstances, where such developments would fail to affect the general public; in general terms the interests of the public weighed against the potential for legitimate expectation.

A condition could usually be varied or discharged only by an application under section 73 of the Town and Country Planning Act 1990.

This would then be entered on the planning register, which would be made available to the public; the decision in Percy Bilton was no longer relevant in the light of changes to the statutory planning system.

It was true that the appellant had continued its development in breach of the conditions but with the knowledge of the respondents.

However, it was not within the respondents' authority to authorise such works or waive the conditions, and since the works carried out by the appellant were in breach of various conditions, they could not amount to a valid commencement of the development under the outline permission.

As a result, the development, as authorised by the planning permission, was not commenced within the time frame and the outline permission had therefore lapsed.

The doctrine of legitimate expectation was rooted in fairness.

The appellant was an experienced developer, and it knew that it needed to comply with the conditions before permission could be granted.

Moreover, it had been alerted to the fact that it was acting in breach of condition on a number of occasions and had had a considerable period of time in which to address the situation and take the necessary legal advice, had it so wished, prior to the expiry of the outline planning permission.