Key point: determining condition details after expiry
In R (Lisle-Mainwaring) v Royal Borough of Kensington and Chelsea [2024] EWHC 440 (Admin), the High Court dismissed a challenge to a council’s approval of a construction traffic management plan submitted to discharge a planning condition shortly before the original permission expired. A valid application for condition details is not automatically incapable of determination because the expiry date passes before the council decides it.
Background and dispute
The case concerned the demolition and replacement of a dwelling at 17 South End, Kensington. A 2019 permission included a requirement to submit and obtain approval of a construction traffic management plan (CTMP). A further submission to approve the details was made on 9th May 2022, just before the time limit for commencing development. The council subsequently approved the CTMP. A neighbour challenged the lawfulness of that approval, arguing that members had been materially misdirected on whether they could decline to determine it following expiry of the permission.
What was actually before committee?
The committee’s task was to decide whether the submitted CTMP met the condition. Whether the developer had carried out a material operation sufficient to lawfully commence the 2019 permission was a different issue. The claimant contended that officers should have invited members to consider declining to determine the details application. The court considered both the written officer report and oral advice given to committee, assessing them fairly and as a whole.
The judgment
Neil Cameron KC, sitting as a Deputy High Court Judge, found no material misdirection. The advice focused members on the CTMP’s acceptability, the application that was actually before them. In any event, the claimant had not raised the supposed discretion with the council, and officers were not required to identify every conceivable legal alternative.
The judge went further and concluded that the general continuing duty to determine valid planning applications, also applicable to reserved matters, extended to applications seeking the approval of details required by a condition. Obiter observations in Whitley did not establish a discretion simply to decline to determine a duly made application after expiry. The judicial review was dismissed.
Practical importance and limits
The decision matters when an application to discharge a pre-commencement condition is submitted close to the permission deadline. It is not authority that every scheme has been lawfully commenced or that late approval cures any unlawful works. The validity of implementation, the condition’s wording, the dates of material operations and compliance with other requirements remain separately assessable. The 2026 Brent materials appeal cited the judgment while expressly avoiding determination of an underlying enforcement dispute.
Judgment: 29th February 2024, Neil Cameron KC, AC-2022-LON-002430. Public judgment source.
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