Claimant group wins judicial review over retrospective effect of quashing of pre-commencement condition discharge

The High Court has found that quashing a pre-commencement condition discharge can have retrospective effect and invalidate the commencement of development.

Mr Justice Morris said in R (Friends of West Oxfordshire Cotswolds) v West Oxfordshire District Council [2024] EWHC 2291 (Admin) that developer Harpercrewe had approval from West Oxfordshire tor the discharge of various pre-commencement conditions.

Local amenity group Friends of the West Oxfordshire Cotswolds sought an order quashing the council’s decision to grant Harpercrewe Section 73 Town and Country Planning Act 1990 planning permission and varying conditions set in an earlier planning permission granted in January 2020 for a 25-homes development at Charlbury.

The group argued this permission was unlawful because the council had no power to grant the Section 73 permission in circumstances where the original permission had expired without lawful commencement.

Its second ground was that West Oxfordshire failed to have regard to a material consideration in failing to reach a judgment on whether the original permission had been lawfully commenced.

The third ground was that the council adopted an unlawful approach in failing to consider that the original permission was incapable of completion, and that it failed to grapple with evidence from statutory body the Cotswolds Conservation Board that the Section 73 permission may be more harmful to the ancient woodland than the original permission.

A final ground was that the decision was vitiated by predetermination and/or apparent bias.

Morris J said grounds one, two and the first part of three succeeded.

Commenting on the judgment, Landmark Chambers, from which Ben Fulbrook represented the friends group, said the group challenged the approval by a claim for judicial review.

Before that could be determined, Harpercrew began operations to commence the original permission, the time for which then lapsed.

Shortly before the judicial review was heard, West Oxfordshire granted Harpercrew a s.73 permission varying the pre-commencement conditions attached to the original permission The judicial review though succeeded and the approval quashed.

The group then filed a further judicial review challenging the s.73 permission, which came before Morris J.

Landmark said in its comments that Morris J found the quashing of the approval had retrospective effect.

It said: “This meant that it was as if there had been no discharge of necessary pre-commencement conditions and that the development had therefore been commenced in breach of those conditions.”

He had applied the Whitley principle - that commencement in breach of pre-commencement conditions will not to amount to valid commencement subject to various exceptions.

In particular, Morris J rejected the council’s argument that the court had no jurisdiction to determine whether a pre-commencement condition went “to the heart of the permission”.

Landmark said: “He held that this would not always be an exclusive matter of planning judgment and that in the circumstances of this case…the court had no choice but to consider it. Morris J found that, on the facts, the relevant conditions did ‘go the heart of the permission’."

Having found that there had been no valid commencement of the original permission, Morris J concluded that it had expired, which Landmark said meant West Oxfordshire had no power to grant the s.73 permission because, at the time of the grant, there was no valid original permission.

Morris J noted that the effect of granting the s.73 permission in these circumstance would be to unlawfully extend the time for commencing the development contrary to s.73(5) TCPA.

Mark Smulian