Greyfort Properties Ltd v Secretary of State for Communities and Local Government & Anor [2011] EWCA Civ 908
The point in plain English: Works do not keep a planning permission alive if they were carried out in breach of a pre-commencement condition which clearly prevented those works and went to the heart of the permission.
What happened
A 1974 permission authorised 19 flats in Torquay. Access works were carried out in 1978 and were physically sufficient to amount to a commencement. But a condition required the ground-floor levels to be agreed before any work commenced on the site, and that had not happened.
The Inspector concluded that the access works therefore did not lawfully implement the permission.
What the Court of Appeal decided
The Court of Appeal dismissed the appeal. The condition was a clear prohibition on commencing any work before the levels were agreed. On the facts, the levels were fundamental to the scheme and the condition went to the heart of the permission.
The court accepted that the Whitley principle should not be applied mechanically or absurdly, but this was not one of the narrow exceptional cases where unlawful works could nevertheless implement the permission.
Why Greyfort matters
Greyfort is an important authority when deciding whether an old permission is still extant. It reinforces the need to read the exact wording and importance of every pre-commencement condition before relying on historic site works as a material start.
See Planning Geek’s guide to extant planning permission and material starts.
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