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The Meisels Judgment: pre-commencement condition – beware the Whitley Principle!

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04/10/2019

The recent decision of the High Court in the Meisels case (Meisels and Anor v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1987 (Admin)) found what might appear to be a seemingly innocuous planning condition to be a ‘true’ condition precedent, the breach of which rendered development unlawful.

Most in the industry will be familiar with the well-established ‘Whitley Principle’, which dictates that development carried out in breach of a condition precedent will not be treated as having implemented a planning permission.

However, much debate in recent years has centred on the question of whether a condition, worded so as to be a pre-commencement condition, goes to the ‘heart of the permission’. If it does, then the condition qualifies as a ‘true’ condition precedent; if it does not, it may be considered to be an ‘ordinary’ condition in any event.

The Meisels judgment is a timely reminder for those in the industry that the question of whether or not a condition is a ‘true’ condition precedent is in truth a matter of planning judgment, which will turn on the facts of the case.

Meisels – the facts

The case involved a planning permission, granted in 2006 subject to conditions, to make extensions to two Victorian terrace houses in Hackney to provide four residential units (2 x 2 bed and 2 x 4 bed flats) and additional space for a synagogue.

Condition two of the consent required details and samples of building materials to be provided to and approved by the Council before work commenced. It went on to state, “The development shall not be carried out other than in accordance with the details thus approved”.

Work on the properties was undertaken, following the grant of the permission. However in 2017, Hackney London Borough Council issued an enforcement notice alleging (amongst other things) that as condition two had not been complied with, the works to implement the 2006 planning permission had not been lawfully commenced before the consent expired. The enforcement notice required the works to be removed.

At appeal, the Inspector found that, “condition 2 fundamentally controls the final appearance of the building and its relationship to its surroundings [and] should be considered as going to the heart of the planning permission”[1].

The Inspector’s decision was challenged in the High Court.

The High Court’s decision

Firstly, Ockelton J emphasised “the primacy” of considering, “what is meant by the words of the condition”[2]. This is essentially a matter of construction for the Court. Unsurprisingly, he concluded in this case that the wording of condition 2 was clear in requiring compliance with its terms prior to the commencement of development.

However, he rightly noted that this was not the end of the matter. It was necessary to then consider whether the condition, “goes to the heart of the permission”[1]. It is at this second stage, as Ockelton J rightly emphasised, that the facts of the case are critical. The question, “can be answered only by a fact-sensitive enquiry into the terms of the condition in the context of the permission, and the permission in its planning context. In other words, this question is a matter of planning judgment. It is not for the Court: it is for the Inspector; and unless the Inspector’s decision on the issue is at fault in a Wednesbury sense, the Court will not intervene”[2].

In considering the lawfulness of the Inspector’s approach, the Court firstly noted that, “…where an authority has clearly made a condition requiring some further act before the commencement of work, there must be scope for saying that the intended function of the condition was to prevent the commencement of work (or render it unlawful) before the condition had been fulfilled”[3].

Ockelton J went on to remark, “What he [the Inspector] actually draws attention to is that condition 2, “clearly fundamentally controls the final appearance of the building and its relationship to its surroundings” and should be considered as going to the heart of the planning permission. That was a conclusion that he was wholly entitled to draw from all the material before him, including his observation of the building itself and its setting”[4].

As such, the Court concluded that the Inspector’s determination as to the meaning and nature of condition two was “unassailable”[5].

Analysis

Firstly, it is important to emphasise that this decision does not mean that a condition akin to condition 2 in Meisels will always be a ‘true condition precedent’.

Each case will, as is often the case in planning matters, turn on its own facts.

There will continue to be instances where the approval of details and samples of building materials does not go to the very principle of the planning permission being considered; in such instances, a condition could not properly be considered to go to the ‘heart’ of the permission even where pre-commencement wording is used in the condition itself.

However, those with the benefit of planning permissions would be wise to err on the side of caution where any planning condition contains wording which requires compliance before development begins.

Wherever a planning condition contains such ‘pre-commencement’ wording, it is advisable to ensure that it is complied with – and the condition formally discharged – prior to starting works on site. This effectively removes the risk that a decision maker (applying their own judgment) will conclude that a condition, which to some might seem to be relatively innocuous, does in fact go to ‘the heart’ of the permission such that failure to comply with its terms results in the loss of the whole consent.

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[1] paragraph 6 of the Judgment
[2] paragraph 14 of the Judgment
[3] paragraph 18 of the Judgment
[4] paragraph 19 of the Judgment
[5] paragraph 18 of the Judgment
[6] paragraph 20 of the Judgment
[7] ibid

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