R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin)
The point in plain English: The Whitley rule should not be applied mechanically so that every failure to satisfy something required before commencement automatically makes an entire planning permission incapable of implementation. The exact wording, purpose and importance of the condition matter.
What happened
A limestone quarry had operated for more than 30 years under a 1971 permission. The council later argued that the permission had never been lawfully implemented because a condition said that a restoration scheme was to be agreed before extraction commenced.
What the High Court decided
Sullivan J first held, as a matter of interpretation, that the condition did not in fact require a separate restoration scheme where restoration was to follow the levels already shown on the approved plan.
He went further because the wider Whitley issue was important. A condition requiring something before commencement is not automatically a condition which goes to the heart of the whole permission. The planning code distinguishes between development without permission and breach of condition, and a judge-made principle should not be pushed to an absurd result.
The court also accepted that there can be a public-law exception where enforcement to prevent the development proceeding would itself be irrational or an abuse of power.
Why Hart Aggregates matters
Hart Aggregates is the important qualification to an over-rigid reading of Whitley. It should be read alongside Henry Boot and the later Court of Appeal decision in Greyfort.
See Planning Geek on extant planning permission and planning conditions.
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