This is a question which has been considered by the Courts on numerous occasions, but still causes contention.  In a recent appeal decision (reference APP/N4720/X/22/3301466x), PINS considered whether a condition requiring materials to be approved was a condition precedent. The condition required samples of materials to be provided to and agreed with the local planning authority (LPA) before any building works commenced. The LPA considered condition 2 was a condition precedent. The Inspector considered the cases of Whitley, Hart and Greyfort Properties and noted that the purposes of the condition in question was to agree the materials to be used before any building works took place. For a condition to be classed as a condition precedent, the condition had to both to be expressly prohibitive of commencement of development and go to the "heart of the permission". If that was not the case, a breach of the condition would arise rather than the development being considered unlawful due to not being commenced validly in accordance with a planning permission subject to a condition precedent. The Inspector concluded that the timing trigger of the condition (prior to building works) had not been breached as no building works had been undertaken. The condition did not therefore prohibit commencement and did not go to the "heart" of the planning permission.

This decision is a helpful reminder to review the drafting of conditions carefully, particularly the wording of triggers. Whether a condition is considered a condition precedent can have a marked impact on the ability to continue to lawfully implement a consent where a breach is alleged.