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Cases

Discharge of conditions: Hart Aggregates survives Trump and publicity for ‘subsequent’ EIA applications

07.12.2018

In a wide-ranging judgment, Sir Ross Cranston has dismissed a challenge to a local planning authority's decision to discharge conditions attached to a planning permission for a wind turbine.

The case, R (Howell) v Waveney DC [2018] EWHC 3388 (Admin) is notable for being the first to grapple with the principles applicable to "conditions precedent" following the judgment of the Supreme Court in Trump International v Scottish Ministers [2015] UKSC 74.

The Court held that an acknowledged breach of a condition which provided that "no development shall commence" until at least three months after notification was given to the local authority of the height and location of tall structures on the site did not mean that the whole development was unlawful. While the required details had only been provided two months prior to the commencement of work (which involved the creation of the access), no tall structures had yet been erected on site. Considerably more than three months' notice had therefore been given prior to the erection of any tall structures and the details had in any event been publicly available for a far longer period.

The condition was not one which 'went to the heart of the permission' (per Hart Aggregates) and, as the purpose of the condition had been fulfilled, it would be irrational for the LPA to take enforcement action in respect of the breach. Thus, notwithstanding the breach of the condition, the development had been lawfully implemented.

The Claimant also challenged the discharge of archaeological conditions on the basis that the written scheme of investigation did not meet the requirements of the condition.

The Court found that it was open to the LPA to discharge the relevant conditions and that, even if it wasn't, the conditions did not go to the heart of the permission so that a breach of them would mean the entire development was unlawful. In any event, it would be irrational for the LPA to take enforcement action because the relevant experts were satisfied with the submitted scheme of investigation, no archaeological assets of any significance were discovered during the works of implementation and there was nothing to suggest that, had the works been carried out differently, any archaeological assets would have been discovered.

Finally, the Claimant argued that there had been a breach of Regulations 9, 18 and 19 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 because the LPA had not publicised the application for discharge of conditions as a "subsequent application."

The Court doubted whether publicity requirements arose in respect of an application for discharge of conditions which was not itself accompanied by an ES (as opposed to an ES having accompanied the application for planning permission). In any event, the Court held that irrespective of any breach, the carrying out of publicity would not have made any difference to the outcome of the decision such that the Court would decline to grant relief as a matter of discretion.

Jack Parker acted for the local planning authority.