At issue was a planning permission for 9 dwellings which expired in October 2023 (the exact date being in dispute between the parties). The permission was commenced at some time in September 2023, in breach of pre-commencement conditions.

The authority refused the application for a lawful development certificate, made in October 2023. It considered that (1) the operations in September 2023 were unlawful because they were in breach of pre-commencement conditions and (2) those unlawful operations could not lawfully commence the permission (per Whitley & Sons v SSW (1992) 64 P&CR 296 “Whitley”). 

The Inspector, however, disagreed. The appellant had applied to discharge all pre-commencement conditions while the permission was extant, and they had since been discharged. Following the exception recognised in Whitley, the permission was lawfully commenced. 

This case illustrates one of the exceptions to the Whitley principle. This case – and the full award of costs in favour of the Appellant – illustrates its importance for developers and authorities alike. 

Michael Rhimes was instructed by Ivan Barry of Prince Evans solicitors. 

The decisions can be viewed here and here.