Greyfort Properties Ltd, R (on the application of) v Secretary of State for Communities and Local Government

Factual and Procedural Background

The Plaintiff seeks to maintain the validity of a planning permission granted in 1974 for the development of nineteen flats in The City. The Plaintiff contends that preparatory operations carried out on the site in January 1978 suffice to keep the planning permission extant, thereby permitting construction of the flats without further permission. However, the Plaintiff does not intend to build the original design but aims to strengthen its negotiating position with the local planning authority for a new permission for potentially different development.

The 1974 permission was a full planning permission with four conditions, including the requirement that ground floor levels for the flats be approved by the Local Planning Authority before work commenced. Preparatory works were undertaken in 1978, which a planning inspector later found could amount to lawful commencement under the relevant planning legislation.

In 2005, the Plaintiff applied for a certificate of lawful use for the residential development, which the Local Planning Authority refused in 2007, stating the Plaintiff had not proven lawful implementation or extant permission. The Plaintiff appealed to the Secretary of State, who appointed an inspector. After a public inquiry, the inspector dismissed the appeal in 2008, finding that although some works commenced, the critical condition regarding approval of ground floor levels had not been satisfied, thus the permission was not lawfully implemented.

The Plaintiff challenged the inspector's decision under the 1990 Act on grounds of alleged error of law.

Legal Issues Presented

1. Whether the 1974 planning permission was lawfully implemented prior to the material date.
2. Whether the preparatory works carried out were sufficient to constitute commencement of development within the meaning of the Town & County Planning Acts.
3. Whether condition (4), requiring approval of ground floor levels before commencement, was a condition precedent to lawful development and whether it had been discharged.
4. Whether the planning inspector erred in law in dismissing the appeal based on the above findings.

Arguments of the Parties

Appellant's Arguments

• The planning permission either set the ground levels of the flats or so closely circumscribed their setting that condition (4) requiring approval of ground floor levels was not a condition precedent to commencing operations.
• The plans incorporated in the permission allowed for discernment of the ground levels with fair accuracy, including precise elevation comparisons with an adjacent building.
• It was more likely than not that the ground levels were approved, including through the building regulations process and subsequent detailed applications, even if the Local Planning Authority's records were inconsistent or deficient.
• Condition (4) did not absolutely prohibit commencement of work before its discharge and should not prevent lawful implementation of the permission.

Respondent's Arguments

• The planning inspector dealt with the question of ground levels as a matter of fact and planning judgment, concluding they were important and had not been established or approved before 1982.
• The Local Planning Authority's witness supported the significance of ground levels, and the inspector's findings on this were binding and not open to challenge.
• Failure to discharge condition (4) meant the permission had not been lawfully implemented, as the condition went to the heart of the permission.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Whitley & Sons v Secretary of State for Wales and Clwyd County Council [1992] 64 P & CR 296	Established the principle that operations contravening conditions cannot be lawful commencement of development (the "Whitley test").	The court applied the Whitley test to determine that operations breaching condition (4) could not commence lawful development.
Leisure Great Britain Plc v Isle of Wight County Council [1999] 80 P & CR 370	Reviewed exceptions to the Whitley principle and rejected any broad equitable discretion to dispense with conditions.	The court acknowledged narrow exceptions but found none applicable to the present case.
R v Flintshire County Council ex p Somerfield Stores Ltd [1998] P & CR 336	Held that substantial compliance with a condition may suffice where formalities were incomplete but the substance was approved.	The court considered this a narrow exception, not applicable here as condition (4) was not approved.
R (On Application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin)	Formulated a refined test distinguishing conditions that go to the heart of permission from those that do not, emphasizing practical and statutory purposes.	The court applied the refined test, agreeing condition (4) was a condition precedent going to the heart of the permission and thus had to be discharged before lawful commencement.

Court's Reasoning and Analysis

The court examined the nature of the 1974 planning permission and its conditions, focusing on condition (4) requiring prior approval of ground floor levels. The court accepted the planning inspector's factual findings that the ground levels were not approved before operations began and that this condition was fundamental to the permission.

The court applied the established Whitley principle that operations breaching conditions cannot constitute lawful commencement. It reviewed the limited exceptions to this principle and found none applicable. The court also considered the refined test from Hart Aggregates, distinguishing between conditions that prevent lawful commencement and those that merely create enforceable breaches.

The court concluded that condition (4) was a condition precedent going to the heart of the permission, and failure to discharge it meant the permission had not been lawfully implemented. The Plaintiff's argument that the plans themselves set or circumscribed the ground levels was rejected as a matter of fact and planning judgment, which the court was bound to respect.

Accordingly, the court found no error of law in the inspector's decision and dismissed the Plaintiff's claim.

Holding and Implications

The court's final decision was to DISMISS the Plaintiff's claim challenging the inspector's decision.

This ruling confirms that conditions precedent requiring prior approval of critical development details must be discharged before lawful commencement of development. Failure to do so means the planning permission remains unimplemented and thus unenforceable. The decision reinforces the strict application of the Whitley principle and its limited exceptions, emphasizing the importance of compliance with key planning conditions. No new precedent was set; the ruling applied existing legal principles to the facts.