Pre-Commencement Conditions – A recent examination

A recent case involving the use of Victorian terrace houses in Hackney examined pre- commencement condition and the lawfulness of implementing the consent without discharging the condition. The premises were used as a Synagogue and the subject of a planning consent  to provide extensive building works at the rear, comprising a four storey rear extension to provide significant residential accommodation. 

The planning permission was subject to a condition that:- full details, with samples of the materials to be used on the external surfaces of the building, including glazing, shall be submitted to an approved by the Local Authority in writing before any work on the site is commenced.  This development should not be carried out otherwise than in accordance with the details thus approved. 

The reason given for imposing the condition was to ensure that the external appearance of the building was satisfactory and did not detract from the character and visual amenity of the area. 

The condition was not discharged prior to the commencement of the development and the Council issued an enforcement notice, requiring the removal of the constructed extension, to fill in the basement and to return the site to its state before the development began on the basis that it was an unlawful development. 

The case offers a useful summary of the position with regard to pre-commencement conditions and lawful implementation. The first assessment in accordance with the Whitley Principle is that a decision has to be taken as to whether the condition goes to the heart of the permission. 

In this case the Inspector and the Judge in the Planning Court took the view that by virtue of the wording of the condition and a factual examination of the circumstances that the external appearance of the building was a critical consideration for the development and as such, the Council took the decision to impose a pre-commencement condition. 

Having reached the situation whereby a condition goes to the heart of the permission, the only ground open to someone who has not complied with the condition is to ascertain whether any of the exceptions to the Whitley Principle were applicable. 

It is often the case, as was the case in the Whitley Principle that an application to discharge a condition had been lodged, development takes place before formal approval and subsequently the condition was discharged. This has been held to remedy any defect in the permission.

In the case, this was not the circumstances and the Court upheld the inspector’s decision to reject the appeal against the enforcement notice on the basis that no lawful implementation of the planning consent had occurred. 

Comment

This is yet another example as to the need to carefully consider pre-commencement conditions and their discharge before a commencement is made on site as failure to do this can have severe consequences both in terms of the development that may be constructed and the eventual resolution of the matter. 

For more information on the above please contact Gareth Pinwell from the Planning Team.