Two recent Court judgments serve as an important reminder of the importance of complying with the scope of a planning permission in order to ensure development is validly commenced. This may seem like a very  obvious and simple point but if it is not followed, it can lead to serious consequences, such as the loss of a planning permission if it has been commenced without full compliance with a pre-commencement condition and the time limit for implementation has expired. My previous blog post sets out when a condition classifies as a condition precedent and is worth reading alongside this post.

In R (Atwill) v New Forest National Park Authority [2023] EWHC 625, the High Court considered whether a planning permission granted in 2018 for a replacement dwelling and detached garage had been lawfully implemented. In 2021, the NPA served an enforcement notice alleging that the dwelling and garage erected on the site had not been built in accordance with the 2018 planning permission as they differed in location, footprint and size, In 2022, the NPA granted a variation of the 2018 planning permission, subject to the following planning condition: "Within two years of the date of this decision, the as-built dwelling shall be amended in accordance with drawing numbers SGA-143-102D Issue PL 1 and SGA-143-104N Issue PL2 unless otherwise agreed in writing with the [defendant]." The planning officer stated that the 2018 planning permission had been lawfully implemented by the demolition of the original building. This decision was challenged on the basis that the planning officer had not properly considered whether the 2018 planning permission remained extant and the existence of the enforcement notice meant that the LPA considered that the existing works carried out on the site were unlawful. The High Court allowed the challenge, referring to the judgment in East Dunbartonshire Council v Secretary of State for Scotland and another [1998] Scot CS 46 and concluded that the defendant's reliance on demolition works alone implementing the 2018 planning permission was unlawful. The starting point when determining if development has commenced is that the operations relied on must be ones which can properly be said to be undertaken pursuant to the grant of the planning permission in question. In addition, it was unlawful for the NPA to impose a condition on the 2021 variation which extended the implementation period by a further two years, as this was  contrary to section 73(5) of the Town and Country Planning Act 1990 (as amended).

In R on the Application of Friends of West Oxfordshire Cotswolds v West Oxfordshire District Council [2023] EWHC 901 (Admin), the LPA granted planning permission for the construction of 25 dwellings and a 12-bed supported living facility. The developer had submitted ecological assessments and biodiversity management plans showing a five-metre buffer zone between the development and adjacent ancient woodland and condition 8 required the provision of this. The LPA approved the developer's plans, and discharged the conditions, even though the plans showed the five-metre buffer zone could not be achieved at three points along the boundary. A local campaign group challenged the decision alleging that the LPA was wrong to approve the plans without requiring provision of a full five-metre buffer zone. In upholding the campaigner’s case, the judge held that condition 8 did not allow officers to vary the width of the buffer zone on discharge and that as the discharge of conditions had been quashed, it was arguable that the permission had not been validly commenced by the deadline.