Protecting your planning permission

Obtaining planning permission for even a relatively modest development can be both a costly and time consuming exercise. And your responsibilities don’t end there.

Having been granted planning permission you must comply with any conditions that are attached otherwise the permission could effectively be annulled.

Two landmark cases have led to potentially far reaching consequences for the implementation of planning permission.

The first is Henry Boot Homes –v- Bassetlaw District Council

Planning permission often contains conditions which require additional details which must be submitted and approved in writing by the local planning authority before the development starts. Examples include a schedule of the external materials to be used or a landscaping scheme.

This type of condition is called a “condition precedent”.

It is important that any conditions precedent are discharged before the development begins. If this is not complied with, any works carried out will not commence implementation of the planning permission and so the development is unlawful and liable to enforcement action, as the Henry Boot Homes case confirmed.

It that case, works started without compliance with the conditions precedent, making unlawful the development of 63 homes and estate roads already completed.

The implications of this are potentially far reaching, especially where applications for planning permission have attracted objections. It may be in objectors’ interests to find breaches they can use as a basis to seek a judicial review, as happened in the Henry Boot Homes case when a rival housebuilder stepped in.

Developers can minimise the need for the local planning authority to impose conditions precedent by making sure their applications for permission are as fully detailed and supported as possible.

In the second scenario, until recently most local planning authorities operated with a degree of flexibility to allow minor amendments to planning permission for buildings to be agreed after permission was granted. Typically this was dealt with by an exchange of letters.

Sage –v- Secretary of State changed that position. The case established that if a building operation is not carried out fully in accordance with planning permission, the whole operation is unlawful. Any deviation from the approved plans cannot be treated as an amendment, minor or otherwise.

It means that if a developer wants to make what used to be a minor amendment once construction is underway, such as altering the size of a window in an extension, they must now resubmit plans for the whole development and obtain fresh planning permission.

This case has significant implications for developers and local planning authorities. It cannot be ignored and must be acted upon.

Developers must, therefore, take care in preparing plans to ensure the form of development they wish to build is exactly as that shown on the plans submitted with the planning application.

Alternatively, if they decide to vary the scheme after permission has been granted they must ensure that a revised planning permission is applied for before building works start.