Whitley once again - no discretion to refuse to determine applications

The High Court has considered and, in a judgment handed down last month, rejected a suggestion that a local planning authority has a discretion to refuse to determine an application for the discharge of a condition which it considers after the statutory 3-year deadline for the implementation of the planning permission to which it relates. Brendan Brett explains the ruling.

The Claimant in Lisle-Mainwaring, R (On the Application Of) v Royal Borough of Kensington and Chelsea [2024] EWHC 440 (Admin) challenged the discharge by the Defendant of a pre-commencement condition relating to a construction transport management plan. The application had been made the day before the expiry of the deadline for the implementation of the planning permission and on the same day as works were carried out which were said to be referable to the permission but in breach of the as-yet-undischarged condition.

Whitley and Sons v. Secretary of State for Wales (1992) 64 P.& C. R. 296 establishes the general rule that works carried out in breach of condition are unlawful and thus incapable of commencing a planning permission. Whitley identifies an exception to that rule however, that where works are carried out in breach of a pre-commencement condition but before the statutory deadline for implementation, and the pre-commencement condition is subsequently discharged after the statutory deadline, those works will be effective to implement the planning permission.

The import of the claim for the Claimant was therefore that if the decision to discharge the condition was quashed, the permission would not be lawfully implemented.

The Claimant’s single ground of challenge relied on a short passage of obiter dicta in Whitley to argue that a local planning authority had a discretion to refuse to even consider an application made in these circumstances, and that by failing to consider whether to exercise this discretion, the Defendant had erred.

The Court rejected the claim. First, it found that Whitley is not authority for the existence of such a discretion, which would be contrary to the Defendant’s continuing obligation to determine applications for the approval of details subject to condition. Secondly, if such a discretion existed, it was not a mandatory material consideration that the Defendant was obliged to take into account, not least because no one (including the Claimant) had asked the Defendant to consider or exercise it.

Brendan Brett is a barrister at Francis Taylor Building. He acted for the Defendant, Royal Borough of Kensington and Chelsea, instructed by Donna Lee and Ross Fletcher of Bi-borough Legal Services. Daisy Noble, also of FTB, acted for the Defendant at earlier stages of the proceedings.