The inspector noted that in 1987 permission had been granted for a dwelling associated with an existing nursery and that in 1992 a further application had been submitted seeking to renew this permission. However, the council wrote to the applicant noting that works to implement the previous permission had started and advising that if they had occurred before the expiry of the original permission, the application to renew was superfluous. The applicant had confirmed that this was the case and the application was withdrawn.
The council argued that the appellant had not demonstrated that the material operations had been carried out before the expiry of the permission and that even if they had been, they were in breach of conditions of the permission and so could not be regarded as implementing it. The inspector observed that trenches had been excavated and remained visible on site and had clearly been carried out in accordance with the plans. The appellant's accounts showed that a fee for a building regulations approval application had been paid to the council before the expiry of the application. he noted.
The inspector was satisfied that material works constituting commencement of the development had been carried out. However, the council contended that they had been carried out without complying with conditions that required approval of materials and a landscaping scheme. The inspector noted that the appellant had sought the approvals required by the conditions but had not gained approval for the landscaping scheme or roof tiles.
The matter remained unresolved because the development never proceeded further, he added.
He remarked that Whitley and Sons v Secretary of State for Wales (1992) indicated that whether or not the permission had been implemented had to be determined in the enforcement context. Once approval for the scheme had been secured the operations could no longer be subject to enforcement, he ruled.
Since the details had been submitted within the prescribed time, the inspector opined that it was still open to the appellants to secure council approval on outstanding matters. By so doing the material operations would become lawful and would be brought within the terms of the Whitley judgement, he determined. He added that R v Flintshire County Council ex parte Somerfield Stores Ltd (1998), which stressed the general principle that operations carried out in breach of a planning condition could not be relied on as commencing development, had to be applied with common sense and with regard to the facts of the particular case.
The inspector concluded that the appellants had done all that they could to comply with the conditions.
He judged that the absence of the appropriate documentation should not be fatal to the material operations and considered that his view was supported by the Flintshire judgement.
Accordingly, he found that the permission granted in 1987 had been commenced.
The council's refusal to grant a lawful development certificate was not well-founded and the appeal should succeed, he concluded.
DCS No: 35517306; Inspector: Keith Turner; Written representations.