F G Whitley & Sons Co Limited v Secretary of State for Wales and Clwyd County Council (1992) 64 P&CR 296
The point in plain English: Works carried out in breach of conditions controlling commencement will not normally count as implementation of the planning permission. But Whitley itself also shows why that principle must be applied to the actual wording, enforcement position and later approvals rather than as an automatic trap.
What the Court of Appeal decided
The mineral permission required working, restoration and landscaping schemes to be agreed or determined before operations began. The developer applied for approval before the implementation deadline, but delay by the authorities meant no determination had been made when limited works were carried out to preserve the permission.
Woolf LJ confirmed the general principle that operations which contravene the conditions of a permission are not ordinarily the development authorised by that permission. On the unusual facts here, however, the required schemes were later approved, the original operations had become immune from enforcement, and approval had been sought before the deadline. The Court therefore held that the later enforcement action should fail.
Do not apply Whitley mechanically
The later case of Hart Aggregates is important when deciding whether a particular condition truly prevents lawful commencement. Read the permission and its conditions together and ask what the condition actually controls.
See Planning Geek’s guide to planning conditions.
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