Case No: C1/2008/2097
Neutral Citation Number: [2009] EWCA Civ 328
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT 
(MR JUSTICE LLOYD JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 17th February 2009

Before:

LORD JUSTICE PILL
LORD JUSTICE KEENE
and
LORD JUSTICE GOLDRING
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Between:

	BRENT LONDON BOROUGH COUNCIL	
Appellant	
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT AND ANR	

Respondent	

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Mr R Green (instructed by Brent Legal and Democratic Services) appeared on behalf of the Appellant.

Ms S Sheikh (instructed by Messrs Blandy & Blandy) appeared on behalf of the Respondent.
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Judgment

Lord Justice Pill:

1.	This is an appeal by Brent London Borough Council (“the council”) against a judgment of Lloyd Jones J dated 9 June 2008, by which he ordered that the council’s application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) be struck out.  

2.	The decision of the Secretary of State, made by an inspector appointed by her and dated 19 December 2007 following a local public inquiry, granted Ashia Centur Limited (“Ashia”) a certificate of lawful use for development, under section 192 of the 1990 Act, on a site at the former Twyford Tip, London NW10.  The Inspector took the unusual course of ordering the council to pay the costs of the appeal, having considered the way in which they had conducted it. 

3.	Ashia sought to strike out the claim under CPR 3.4(2) and also summary judgment on the ground that the council had no real prospect of succeeding on their claim (CPR 24.2).  

4.	On 15 September 1993 the council granted Ashia outline planning permission for development of the site by the removal of tipped soil and the erection of an Asian Centre comprising a hotel, television centre, social, community and leisure facilities with service roads and car parking.  Grants were later made approving reserved matters and providing extensions of time in which to submit details and begin development.  It is common ground that these required the initiation of development by 12 January 2004 and the issue is whether the permitted development had lawfully begun by that date.

5.	Works were carried out on the site in 2002 and 2003.  It is clear from documents to which we have been referred that during the years after 1993 there were negotiations between the council and Ashia.  We have been shown a number of approved plans in relation to the access road.  

6.	As summarised on behalf of the council, permission to appeal has been granted on two grounds.  (a) The judge erred in holding that the access works lawfully began the permitted development; (b) The judge erred in finding that if the council’s statutory challenge were to be permitted to go ahead, it would involve the court in coming to conclusions which would involve the exercise of planning judgment.   Mr Green, who appears for the council, told the court that the second of those grounds is merely a reply to an argument on behalf of Ashia that the court ought not to consider the first of the grounds because the point had not been taken before the Inspector.

7.	Before the Inspector the council’s case was that the works carried out on site were not material operations.  Development is defined in section 55 of the 1990 Act, and section 56(2) provides that: 

“…development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out”

Under section 56(4)(d), “Material operation” includes: 

“Any operation in the course of laying out or constructing a road or part of a road”.

8.	In Malvern Hills DC v Secretary of State for the Environment [1982] JPL 439 the Court of Appeal upheld a finding that the marking out of the line and width of a road with pegs amounted to an operation in the course of laying out part of a road as defined in subsection (4)(d).  

9.	Jacob LJ granted limited permission on paper.  He refused permission to argue the point taken before the Inspector, that is, that the relevant works were not material operations.  The application for permission on that ground has not been renewed before this court.  

10.	On behalf of Ashia Ms Sheikh persists in the point that the court should not hear the council on the point now sought to be taken.  The present point was first taken before the judge, it not having been taken before the Inspector.  In relation to that issue, the judge stated at paragraph 19: 

“However the Council now says that the matter goes rather farther than that.  The Council say that, having expressly raised the issue of non-compliance with [condition] 6, the Inspector should have gone on to decide the Whitley  point.  In his skeleton, Mr Green puts it in this way: he says having expressly raised the issue of non-compliance with condition 6 of the permission, it was incumbent on the Inspector to deal with it if, as the interested party alleges in paragraph 16 of its grounds, the Inspector found that the works were undertaken in accordance with the permission.  He [Mr Green] says it is a mystery how the Inspector dealt with non-compliance with condition 6, or indeed what other works were properly capable of beginning the development. In support of his case on ground 2, Mr Green relies, as I have indicated, on the judgment of Woolf LJ in Whitley, to which I shall return.” [And so shall I]

11.	As recorded by the judge at paragraph 18, Mr Green, who also appeared on behalf of the council at the inquiry, accepted that although he had taken the point about non-compliance with condition 6 it was not in purported reliance on any Whitley argument (Whitley & Sons v The Secretary of State for Wales [1992] 64 P & CR 296).  The judge was, however, prepared to hear argument on the Whitley issue, to be considered later.  In my judgment it is not open to the council to take before these courts the Whitley  point when it was not taken before the Inspector.  I would dismiss the appeal on that ground, but I propose to go on, as did the judge, to deal with the merits of the appeal on the ground for which permission has been given.  I propose to do that first because my conclusion on the admissibility issue will be more readily understood once extracts from the Inspector’s report and the issues which arise on it are considered.  

12.	Mr Green’s submission on behalf of the council on the merits is that work the Inspector found to be material to the development was in breach of condition 6 attached to the permission, because specifications, including details of lighting and drainage mentioned in the condition, and such other questions as the width of pavements, had not been submitted to and approved by the local authority before the work was done.  Mr Green submits that development begins within the meaning of sections 55 and 56 only if work is lawfully done. Work on the access road was not lawfully done because Ashia had failed to comply with condition 6.  Development under section 56 must be authorised development.  

13.	The Inspector first considered the access road and the work done on it at paragraph 12 of his decision letter.  It is relevant to record that the approved plans include a new access point serving both the appeal site and the waste station to the south of the existing access.  That is shown as closed, with a new junction arrangement between what would be the sole access road into the appeal site and the existing route into the waste station.  Works are also intended to be carried out both within Abbey Road and within the site boundaries pursuant to sections 38 and 278 of the Highways Act 1980.  As was done at the inquiry I refer to drawing 01019/2B appended to a Deed of Agreement of 20 September 2002 as representing the approved site arrangements.  

14.	The Inspector set out in considerable detail the evidence about the work which done on site prior to 12 January 2004.  He concluded at paragraph 24: 

“From the plans available. the vehicular carriageway of the permitted access would be slightly less than 15m wide, to the west of the pedestrian island shown at the site entrance.  The Council’s witness not only accepted that the works outlined above had taken place, but that the area treated as in Bundle 4 was ‘within the approved layout’ or ‘overlapped’ it.  He also accepted, in principle, that most of the works described could be ‘material operations’ within section 56.  Leaving the planning permission aside, I have not  a scintilla of doubt that the works under Bundle 4, and some at least under Bundle 3, would by themselves amount to operational development under section 55 [of the 1990 Act].  The issue therefore becomes one of whether they were ‘comprised in the development’.”  

The Inspector was there echoing what he had stated early in his decision letter at paragraph 8:  

“That in turn depends on whether the development had been begun by the agreed date…”  

15.	The Inspector then referred to section 56(2) and section 56(4) which I have already set out.  On that issue the Inspector set out the council’s case:

“25. The Council base their case here principally on the nature and purpose of the works carried out.  First, there is no evidence to support their earlier assertion that the PermaZyme treatment would be incapable of bearing heavy traffic.  Their witness also readily acknowledged that he was not ‘qualified to say’ whether it was capable of forming a permanent road. None indeed of the evidence about its properties was significantly challenged. Further, given the readily available information about it, I cannot see any relevance in the fact that the process was previously unknown in this country, even if correct.

26.  The Council drew attention to the alignment of the road as shown on the plans, not only those in the Bundles, but also those submitted in May 2002, described as detailed design drawings for the highway works.  One of these [the number is given] shows the final approved scheme, with the existing access in less distinct form, and a hatched overlay from the new access described as ‘temporary access re-alignment for waste disposal site.

27. Even on that plan however there is, as acknowledged, a considerable ‘overlap’ with the approved scheme, so much so that the Council’s witness himself described it as a ‘subtle variation’. It takes the form of a slightly northward ‘hump’ at about the point where the new access would, temporarily, join the existing route.  Though no evidence was called from the designer, this might well  have been to ensure good visibility while the existing route remained in use, which from the letter quoted above, appears to have been the intention for the removal of spoil.  As a question of fact however, the works carried out accorded with the approved plans, at least in the overall layout, save for this one ‘subtle variation’.”

16.	It clearly emerges from those paragraphs that the work done was done in accordance with approved plans, and that those plans dealt with the access road in considerable detail.  The Inspector stated his conclusion at paragraph 28:

“28. There was no submission that the works were carried out in breach of a condition precedent.  Even if approval for them should strictly have been sought pursuant either to condition 6 of the outline permission or under the 1993 Agreement, the fact that it was not does not of itself mean that they were carried out for some purpose unrelated to the development permitted.  On-site access routes might vary throughout the course of construction for any number of reasons.  The Appellants’ evidence, unsurprisingly, was that they had a contractual obligation to maintain access to the waste station.  The works carried out were not in the formation of an altogether different access route to that approved, but included a minor ‘temporary re-alignment’ of it.  The Council had no answer to the question of what purpose there could have been in carrying out those works, where a perfectly good access to the waste disposal site existed already, if they were unrelated to the permission.  Even if further works might be needed later to the road base or surface, given their location, I consider that these were operations carried out in the course of laying  out, if not constructing, part of the only approved access road.  They went in my assessment well beyond the mere preparatory works and amounted to an unequivocal act in the implementation of the permission.”

17.	That, if I may respectfully say so, is a most carefully reasoned paragraph and conclusion, entirely based on the findings the Inspector had earlier made. What is clear is that the issue, and the only issue, the Inspector was considering, was whether the works done were comprised in the development in a way that would bring them within section 56(4)(d).  

18.	I refer now to condition 6: 

“The access road(s) shown on the plan(s) submitted shall be constructed in accordance with specifications (including details of lighting and drainage) to be submitted to and approved by the Local Planning Authority and the works in connection therewith shall be commenced within six months of the commencement of any other part of the approved development or such longer period as may be approved by the Local Planning Authority and completed prior to occupation of the buildings hereby approved. 

Reason: 

To ensure a satisfactory design and that the proposed development does not prejudice the free flow of traffic or the conditions of general safety along the neighbouring highway.”

While plans in some detail had been submitted and approved they did not descend to such details as mentioned in the condition, lighting and drainage.  

19.	When considering the merits of the fresh argument raised before him, the judge cited Whitley and R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin), [2005] JPL 1602.  In Whitley the relevant condition, condition 2, provided: 
“No working shall take place except in accordance with a scheme to be agreed with the local planning authority.” 

Conditions in relation both to restoration and landscaping of the site also provided that schemes were to be agreed with the local authority “before working takes place”.  Condition 2 was in a prohibitory form absent in the condition relied on by the council in the present case.  

20.	The local authority’s submission in Whitley, similar to the fresh ground in the present case, was that a development carried out in contravention of the conditions attached to the planning permission could not be relied on as implementing the permission.  Woolf LJ, with whom the other members of the court agreed, stated the principle at page 302 : 
“As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions?  This permission is controlled by and subject to the conditions.  If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission.  If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful.  This is the principle which has now been clearly established by the authorities.”

21.	The principle has been reaffirmed in subsequent cases, for example by Keene LJ in Henry Boot Homes Limited v Bassetlaw DC [2003] 1 P&CR 23, at page 385: 
“37. In general, operations carried out in breach of a condition cannot be relied upon as material operations capable of commencing the development within the meaning of s.56(2).”

Brooke LJ and Bodey J agreed with the judgment of Keene LJ.

22.	In R (Hart Aggregates Ltd) v Hartlepool BC the company were operating a quarry under a planning permission granted in 1971.  Permission was subject to a condition which provided that: 

“10. The worked out areas shall be progressively back-filled and the areas restored to levels shown on the submitted plan or to a level to be agreed by the Local Planning Authority in accordance with a restoration scheme to be agreed by the Local Planning Authority before extraction is commenced.”

No restoration scheme was ever submitted or agreed.  Further permissions were granted.  The issue before the court was whether the 1971 permission had lapsed because the condition had not been complied with.  The reasoning of Sullivan J in that case was plainly much influenced by the lapse of time since the permission had been granted and the condition imposed, the operations having been conducted over many years and there having been no enforcement action during that period.  The judge found that the restoration scheme mentioned in the condition had been overtaken by restoration provisions in later permissions and enforcement proceedings would be both “irrational and an abuse of power”.  Sullivan J found no breach of the relevant condition in the circumstances.  

23.	Sullivan J went on to consider the effect of the Whitley principle and stated, at paragraph 58: 
“The need for a local planning authority to spell out any requirement of prohibition in clear terms applies with particular force where the condition is said to prevent not merely some detail of the development, but the commencement of any development pursuing to the planning permission.”

At paragraph 62 he stated: 
“In my judgment, the principle argued for by the defendant applies only where a condition expressly prohibits any development before a particular requirement, such as the approval of plans, has been met.”

24.	When the Whitley issue arose in this court in R (Prokopp) v London Underground Ltd and SRA [2003] EWCA Civ 961, Buxton LJ stated, at paragraph 85: 
“I would therefore respectfully agree with the view of Ouseley J in Hammerton [(2002) EWHC Admin 2307] that irrationality of enforcement action falls within the public law exception to the Whitley principle”

25.	It is not necessary to determine this appeal to consider whether and, if so, to what extent, the strict application of the Whitley principle has been relaxed in subsequent cases such as Hart.  I do not find it necessary to resort to consideration of possible exceptions to the Whitley principle to uphold the decision of the judge and inspector.  
26.	I have regard to the following factors: (a) There is no doubt that any operation in the course of laying out or constructing a road or part of a road can amount to development within the meaning of section 56 of the 1990 Act; (b) the Inspector found the work done was a material operation comprised in the development within the meaning of section 56(2).  There is now no challenge to that finding nor in my judgment could there reasonably be such a challenge; (c) the condition was neither in the prohibitory form of condition 2 in Whitley nor did it include the words “prior to the commencement of development”; (d) the work on the access road, though properly found to be a material operation, did not prevent final construction of the access road in accordance with specifications, including as to lighting and drainage, to be approved by the council.  The council’s witness accepted before the Inspector that the development was “within the approved layout” or overlapped it considerably; (e) The council’s stated aim in the condition was to ensure a satisfactory design, the free flow of traffic and safety, and can still be met notwithstanding the work on the access road which had been done; (f) Nothing had been done which prejudiced compliance with a council approved scheme for the completed access; (g) There was no infringement of the temporal component of the condition; (h) The access arrangements were subsidiary to the substantial building development approved; (i) There is no suggestion, and there was no evidence before the Inspector, that the detail of the access road was a substantial or sensitive issue in planning terms.  

27.	The work done was in my judgment lawful.  There was no prohibitory condition.  Secondly, substantial approvals were given in the approved plans for the access road.  Such approvals were appropriate for the stage of the development which had been reached.  Thirdly, the work was done, as the Inspector recognised, subject to minor possible exceptions, in accordance with approved plans.

28.	There was in my judgment no breach of condition 6.  Approval could subsequently be sought for the remaining features of the access road including those specifically mentioned in condition 6: lighting and drainage.  I do not find it at all surprising that this point was not taken before the Inspector or that he did not deal with it.

29.	I return to the first issue as to whether the council are entitled to take the Whitley point and do so in the light of the Inspector’s findings, and his clear concentration on, and only on, the issue raised before him by the council.  Mr Green submits, and I accept, there may be cases in which a party to a planning decision may be allowed to take a legal point in the courts which had not been taken before an Inspector or with the Secretary of State.  That is not to say that legal points should not be taken before the Inspector.  Inspectors, though usually not qualified lawyers, are expected to deal with legal issues and are often familiar with them.  Mr Green submits that he should be permitted to argue the point because there was no prejudice to Ashia in his being able to do so.  Ms Sheikh submits that there was prejudice.  The public inquiry would have taken a different course had this point been raised. 

30.	I agree with the submission of Ms Sheikh.  Had the Inspector’s attention been directed to the Whitley issue he would inevitably have been directed to the approved plans.  The Inspector could and would have considered the work done in relation to the approved plans, and could have formed the judgment which, in the event, this court has done, as to whether there had been a breach of condition and as to other points which potentially arise when considering whether the Whitley principle applies.  Ashia were, in my judgment, plainly prejudiced by the point not having been taken at that stage.  They might have called further evidence.  The point was not taken advisedly.  Mr Green tells us that the council had decided not to take it but to concentrate their argument on the other point to which we have referred.  They cannot take the point now.

31.	For those reasons I would dismiss this appeal.

Lord Justice Keene:

32.	I agree that this appeal should be dismissed for both the reasons given by Pill LJ, but I wish to add just a few comments of my own.  The time at which development begins is governed by section 56 of the 1990 Act.  One should note the terms of section 56(2) that: 
“development shall be taken to be begun on the earliest date on which any material operation comprising the development begins to be carried out.”

section 56(4) explains what is meant by “material operation”.  By virtue of paragraph (d) of that subsection it includes: 
“any operation in the course of laying out or constructing a road or part of a road”

So one gets to the position whereby development begins when any operation in the course of laying out or constructing a road or part of a road begins.  Thus the start of any one operation will suffice.  

33.	For my part I accept that, generally speaking, the line of cases from Whitley onwards requires a material operation to be an authorised one, not in breach of condition, although there are, as Pill LJ has indicated, some exceptions to that proposition.  But in the present case the appellant’s argument depends fundamentally on all the operations begun in respect of this access road being unauthorised because they were in breach of condition 6.  One notes that section 56(4)(d), to which I have referred earlier, speaks disjunctively of “laying out or constructing” a road or part of a road.  Condition 6 in this planning permission only required the access road or roads to be constructed in accordance with an approved specification.  It said nothing about the laying out of such a road or roads.  The laying out of a road comes before its construction and nothing in condition 6 requires approval of a specification before any operation involved in the laying out of an access road may be begun.  Indeed, it is not entirely clear whether the specification required under condition 6 would, in terms of laying out the access road, have added anything to the details already approved via the plan which is entitled “Access arrangements” plan.  Insofar as there is any lack of clarity it seems to have been the consequence of this line of argument not having been adequately ventilated before the Inspector.  

34.	But the finding made by the Inspector, at paragraph 28 of his decision, was that there had been operations “carried out in the course of laying out, if not constructing, part of the only approved access road”.  So those operations were referable to that permitted road.  I am not persuaded that the earliest works carried out in the course of laying out that road were in any sense in breach of condition 6.  If that is so, that is sufficient to determine this appeal.  The judge was right to strike out the council’s section 288 application.  

35.	This appeal in my view should be dismissed.

Lord Justice Goldring:

36.	I agree with both judgments and have nothing further to add.  

Order: Appeal dismissed