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28 July 2011
Court of Appeal (Civil Division)
Maurice Kay LJ; Richards LJ; Leveson LJ
The failure to comply with a condition precedent which went to the heart of the permission meant that a development had not commenced and the permission had lapsed.
On appeal from:
R (Greyfort Properties Ltd) v Secretary of State for Communities and Local Government  EWHC 3455 (Admin) (Mitting J)
Summary of judgment
(1) Greyfort Properties Ltd (G) appealed against the decision of Mitting J that its planning permission had lapsed. G had been granted planning permission in 1974 for the development of 19 flats. The permission included a condition that work had to be commenced within five years and that before any work was commenced the ground floor levels shall be agreed with the planning authority (‘the condition’). In 1978, G carried out some access work and argued that this amounted to commencement of work within five years and so the planning permission was still extant. A planning inspector concluded that the access work had been carried out in breach of the condition since the ground floor levels had never been agreed and that this meant that the planning permission had not been implemented, applying the principle in FG Whitley & Sons Co Ltd v Secretary of State for Wales (1992) 64 P&CR 296. G argued that (a) the condition was not a ‘condition precedent’ and so the Whitley principle did not apply and (b) that the plans effectively determined the ground floor levels.
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