R (Friends of West Oxfordshire Cotswolds) v West Oxfordshire District Council [2024] EWHC 2291 (Admin)

The High Court handed down judgement in this case on 6 September 2024 which illustrates important points to bear in mind in relation to pre-commencement conditions and the retrospective effect of quashing orders, which in turn can mean that development already commenced is unlawful.

 

The facts in summary

1. This case has a complex timeline. In summary, West Oxfordshire District Council (Defendant) had approved details submitted to discharge various pre-commencement conditions (Approval) imposed on developer Harpercrew Limited's (Interested Party) consent (Original Permission). The Approval was challenged by way of a claim for judicial review by Friends of the West Oxfordshire Cotswolds (Claimant) (Approval JR).
2. Before the Approval JR was heard, the Interested Party (i) carried out material operations relying on the Approval to commence development of the Original Permission; and (ii) was granted a section 73 permission varying pre-commencement conditions imposed on the Original Permission (Section 73 Permission).
3. The Approval JR was then heard, resulting in the quashing of the Approval.
4. The Claimant then filed the present judicial review claim, that the Defendant's decision to grant the Interested Party the Section 73 Permission was unlawful (Decision) on four grounds, the key ground being ground 1 that the Defendant had no power to grant the Section 73 Permission in circumstances where the Original Permission had expired without lawful commencement.
5. Morris J upheld Ground 1 and quashed the Section 73 Permission.

Ground 1

Morris J identified three issues arising from Ground 1: (1) whether the quashing of the Approval had retrospective effect; (2) if the answer was yes, if the matter was properly one for the Court, whether the Original Permission was validly commenced; and (3) if the answer was no, whether the Defendant had the power to grant the Section 73 Permission.

Ground 1(1)

Morris J found that the quashing did have retrospective effect. He concluded that all parties were on notice that the Approval was under challenge, that there was no particular urgency for the Defendant to proceed to the Decision and that the Defendant was responsible for its own unlawful decision in granting the Approval.

Ground 1(2)

1. Morris J relied on the Whitley¹ principle when assessing Ground 1(2). When evaluating whether operations commence development, Whitley states: “If the operations contravene conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities.”²
2. The Defendant had argued that whether or not pre-commencement conditions go to the “heart of the permission” (which they must do to engage the Whitley principle) was a matter of planning judgement for the local planning authority. Morris J rejected this argument and stated that it is a matter for the Court to determine in some cases. He held that in this case, it was appropriate and necessary for the Court to determine this issue.
3. For these reasons, Morris J held that the operations to commence the development authorised by the Original Permission were unlawful and so the Original Permission was not lawfully commenced.

Ground 1(3)

1. Morris J observed that “resolution of this issue is not straightforward.” He did however conclude that the Claimant's contentions were correct; that the Original Permission was not lawfully commenced and the time for commencement had expired. The Defendant had no power to grant the Section 73 Permission.
2. The Defendant had sought to rely on obiter dicta comments by Schiemann LJ in R v Leicester CC ex parte PowerGen UK Limited³ (Powergen) that the Section 73 Permission could be granted in these circumstances because at the time that the section 73 application was made, the Original Permission had not yet expired. Morris LJ disagreed with this argument. He concluded that given the retrospective effect of the Approval being quashed, there was no approval, and could never be approval, therefore the Original Permission was not capable of lawful commencement within the time limit.
3. Morris J also concluded that Powergen had been overtaken by the enactment of section 73(5) of the Town and Country Planning Act 1990 which prohibits the grant of a section 73 application to extend the time limit for commencing development.
4. Morris J quashed the Section 73 Permission in light of his conclusions on these three issues.

Ground 3A

1. Morris J also upheld ground 3A that the Defendant adopted an unlawful approach to the Original Permission as a “fallback” position in making the Decision in so far as the Defendant failed to consider that the Original Permission was incapable of completion. The Decision took into account as a material consideration the prospect of implementing the Original Permission, which was not in fact capable of being a relevant material consideration. Morris J accordingly concluded that for that reason, the Decision was unlawful.
2. Morris J also declined to refuse relief based on section 31(2A) of the Senior Courts Act 1981 as he was not satisfied that it was highly likely that the Decision would have been the same had the Defendant appreciated that the Original Permission could not be implemented.

 

Unsuccessful grounds of challenge

Ground 2

1. The Claimant advanced Ground 2 as an alternative to Ground 1. It argued that the Defendant had failed to decide whether the Original Permission had been lawfully commenced.
2. Morris J refused this line of argument and did not accept that the Defendant had to undertake this exercise.

Ground 3B

1. The Claimant argued that the Defendant failed to grapple with evidence from a statutory conservation body that the Section 73 Permission would be more harmful to an area of ancient woodland than the Original Permission.
2. Morris J did not find this ground to be a self-standing basis upon which the impugn the Decision and added that it did not add materially to Ground 3A.

Ground 4

1. The fourth and final ground for review advanced by the Claimant was that the Defendant's decision to grant the Section 73 Permission was vitiated by apparent bias and/or predetermination.
2. Morris J was not satisfied that the fair-minded and informed observer would conclude this and therefore he rejected Ground 4.

 

Key takeaway for developers

Should you find yourself in a situation where you have a permission that is subject to challenge, it is very much a case of proceeding at your own risk. We thus recommend doing the minimum works required to protect your position until the challenge is determined.

---

¹Whitley & Sons v Secretary of State for Wales (1992) P&CR 296
²Whitley at 302
³(2001) 81 P&CR 47