Advocates Library Parliament House Edinburgh EH1 1RF
When can a development be said to have lawfully commenced ?
Hastie Stable Member Jacqueline Williamson was recently successful in the Court of Session appeal of Doonin Plant v. Scottish Ministers  CSOH 3 which was concerned with the question of when a development can be said to have lawfully commenced. This question is of particular relevance in the current economic climate where both developers and householders alike are struggling to bring forward developments for which planning permission has already been granted before such permissions lapse.
It’s well established that initiating or starting a development is sufficient to lift the time limit for all of the development: Salisbury District Council v. Secretary of State for the Environment  J.P.L. 702.; Glasgow District Council v. Secretary of State for Scotland (No. 2) 1993 S.L.T. 268 at 274-275. It’s also well established that very little is required to start a development in order to lift the time limit for all of the development: East Dunbartonshire Council v. Secretary of State for Scotland and MacTaggart & Mickel Ltd  1 PLR 53 (I.H).
However, problems continue to arise in relation to the issue of whether the development has been legally initiated and it was this problem which lay at the heart of the appeal in Doonin Plant. Doonin purchased a site which was formerly used as a bottling plant and milk distribution centre by a dairy operator. Doonin wished to use the site as a transport operating centre, administration headquarters and materials recycling centre. Planning consent was required and obtained in November 2001 for a change of use for this purpose subject to a number of conditions. However, crucially none of the conditions attached to this permission could properly be described as “condition precedents” or “suspensive” conditions which required to be purified before the development could be said to have been initiated. Doonin began using the site in what it thought was in accordance with its planning permission. However, the planning authority took the view that Doonin had not complied with one or more conditions attached to the permission and served a breach of condition notice. By 2009, the planning authority was still not satisfied and served an enforcement notice in which it claimed that the planning permission had not been lawfully implemented and had therefore lapsed in November 2006 with the consequence that Doonin had no planning permission at all for the works being carried out on the site. The planning authority’s position was upheld on appeal to the Scottish Ministers. Doonin appealed to the Court of Session.
Miss Williamson on behalf of Doonin submitted that the question of whether a development has lawfully been initiated is still a developing area in planning law. The case law reveals that there are two lines of authorities on this issue. The first line of authorities begins with Whitely & Sons v. Secretary of State for Wales and Clwd County Council (1992) 64 P. & C.R. 296 and the subsequent cases which cited it with approval. The second line of authorities begins with R (Hart Aggregates Ltd) v. Hartlepool BC  EWHC 840 Admin and is often cited as the first case in which the Courts began to distance themselves from dicta in Whitely & Sons. After a review of these authorities and in reliance upon Hart Aggregates, Miss Williamson advanced the following propositions:
i) Starting work on a site without complying with a condition does not automatically render that commencement unlawful or ineffective to trigger the permission: Hart Aggregates at para.58;
ii) If the condition does not actually prohibit the commencement of the development, before compliance with the condition, then failure to comply with the condition will be a breach of condition but no more than that. The commencement of works will still be effective to implement the permission: Hart Aggregates at para.62; Bedford Borough Council at para.35(1);
iii) If the condition is prohibitively worded, an unlawful commencement of the development which is ineffective to trigger the permission, engages the Whitely Principle and this may result in the permission being ‘lost’ or incapable of lawful implementation unless one or more of the exceptions to the Whitely Principle can be established: Bedford Borough Council at para.35(2);
iv) The three exceptions to the Whitely Principle allow a previously unlawful commencement to be retrospectively validated either by subsequent compliance with the condition, or by consent or where the relevant condition has been met in substance: Leisure GB (2000) 80 P.& C.R. 370 at p.379.
Without wishing to do a disservice to the pre-Hart Authorities and to the decision of the Inner House in the East Dunbartonshire Council case in this area of planning law, it is fair that in the majority of early cases, it was either accepted that if there was a breach of condition, the Whitely Principle was engaged and the permission lapsed, or in that the relevant condition under consideration was clearly a true condition precedent in any event.
Lady Clark accepted Miss Williamson’s submissions that the fact that a condition may not have been complied with in itself is insufficient to render an entire development unlawful. She stated:
“In my opinion, the case law and principles derived from Whitely on which the respondents relied deal with conditions which are framed in a different way and have a different impact upon whether or not a development can be commenced or initiated in breach of a particular specified condition. The planning authority in making and framing conditions in respect of any planning permission may frame conditions in such a way that prevents the commencement of the development unless the conditions are fulfilled. In my opinion, the conditions in the present case do not achieve that.
In my opinion, it is not every condition, unless so expressed, which will give rise to the result that the development is unlawful because it has never been commenced in accordance with a planning permission or conditions. There is a clear distinction in the planning legislation between the commencement or initiation of development and breach of a condition or conditions which may lead to enforcement proceedings.”
This case should serve as a timely reminder both to developers and householders to ensure that their developments are legally commenced before the time limit for commencement lapses: and to planning authorities to ensure that conditions which they consider are of the upmost importance to the development, are drafted in such a way so as to prevent legal commencement until those conditions have been purified.
A report of the case can be found here: http://www.scotcourts.gov.uk/opinions/2011CSOH3.html