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Judgment was handed down today by Morris J, in R (Friends of West Oxfordshire Cotswolds) v West Oxfordshire District Council [2024] EWHC 2291 (Admin) which includes important findings about pre-commencement conditions, the retrospective effect of quashing orders and the power to make s.73 applications.
The outline facts were as follows. A developer had obtained approval from the local planning authority (LPA) for the discharge of various pre-commencement conditions (the Approval). The Approval was challenged by way of a claim for judicial review (JR). Prior to the determination of that challenge, the developer undertook material operations to commence its permission (the Original Permission). The time for commencing the Original Permission then lapsed. Shortly before the hearing of the JR the LPA granted a s.73 permission “varying” the pre-commencement conditions attached to the Original Permission (the s.73 Permission). The JR was then allowed and the Approval quashed.
The claimant then filed a JR challenging the s.73 Permission on a number of grounds. Morris J’s determination of this claim (in favour of the claimant) raises a number of important points of principle which are as follows:
(i) Morris J found that the quashing of the Approval had retrospective effect. This meant that it was as if there had been no discharge of necessary pre-commencement conditions and that the development had therefore been commenced in breach of those conditions.
(ii) Morris J went to apply the principles derived from case law relating to the so-called Whitley principle - that commencement in breach of pre-commencement conditions will not to amount to valid commencement subject to various exceptions. In particular, Morris J rejected the LPA’s argument that the Court had no jurisdiction to determine whether a pre-commencement condition went “to the heart of the permission” (a necessary requirement for the application of the Whitley principle). He held that this would not always be an exclusive matter of planning judgment and that in the circumstances of this case (where the claimant was challenging the LPA’s power to grant a s.73 permission and there had been no prior consideration of the question by the LPA) the Court had no choice but to consider it. Morris J found that, on the facts, the relevant conditions did “go to the heart of the permission”
(iii) Having found that there had been no valid commencement of the Original Permission, Morris J concluded that it had expired. In these circumstances, he agreed with the claimant that the LPA had no power to grant the s.73 Permission because, at the time of the grant, there was no valid Original Permission. In reaching this conclusion, he disagreed with obiter comments by Schiemann LJ in R v Leicester CC ex party Powergen (2001) 81 P&CR 47 that a s.73 permission could be granted in these circumstances so long as there was a valid permission in place at the time the application was made. He noted that the effect of granting the s.73 Permission in these circumstance would be to unlawfully extend the time for commencing the development contrary to s.73(5) TCPA (a provision which was not in place at the time of Schiemann LJ’s judgment).
Morris J also allowed the claim on a separate ground relating to the Council’s treatment of the Original Permission as a “fallback”.
Ben Fullbrook represented the successful claimant.
