“We have had several cases recently involving non-compliance with pre-commencement conditions in a planning consent”, says Brian Dinnis of Acorn Rural Property Consultants.
“Conditions attached to planning consents fall into three general categories. The first is pre-commencement conditions that must be complied with before development commences; the second is conditions that apply during development; and the third is conditions that apply after the development has been completed, such as occupancy conditions. Pre-commencement conditions usually cover areas such as landscaping but can include anything that the Local Planning Authority (LPA) considers should be dealt with before development commences”, explains Dinnis.
“The starting position is that if development starts before dealing with the pre-commencement conditions it is unlawful. In one of our recent cases, the planning consent for a new farm building, that had already been built, included a pre-commencement condition concerning landscaping issues. Several other pre-commencement conditions had been discharged but the landscaping condition had not. The LPA had said that, as a result, the building was unlawful and threatened to take enforcement action”, continues Dinnis.
The question of non-compliance with pre-commencement conditions has been considered by the court on a number of occasions. The first test is whether the condition “goes to the heart” of the planning consent. That is always a question of fact and degree on each individual case. For example, building a house on a different footprint from the approved plans is highly likely to go to the heart of the consent, but using different cladding from what was approved on a farm building may not. If the planning condition does not “go to the heart” of the consent, then non-compliance will not result in the development being unlawful.
“Timing is also important. One of the lead cases, Whitley and Sons v Secretary of State (1992) 64 P & CR 296), established that, if an application is made to discharge pre-commencement conditions before the date on which the planning consent would have lapsed, it can be dealt with retrospectively and, if approved, the development will be lawful”, advises Dinnis.
“Following what is known as the Whitley principle, non-compliance with a pre-commencement condition will only render a development unlawful if it goes to the heart of the consent and the time for implementing the planning consent has lapsed with no application to discharge it being made, or, where an application that has been made in time has been refused”, concludes Dinnis.
For further information please contact Acorn Rural Property Consultants on 01884 212380