Killian Garvey succeeds in appeal concerning condition precedents.

Killian Garvey, instructed by Emery Planning, succeeded in respect to a lawful development certificate appeal in the Peak District National Park Authority.

In June 2008, the Appellant secured planning permission in respect to his site for the conversion of a building. The Appellant proceeded with the development and he occupied it since March 2009. The issue was whether the house as constructed was in accordance with the permission.

The Appellant argued that the permission had never been implemented. If that was correct, it would mean that the development was immune from enforcement and significantly, it would not be subject to a condition that only allowed people from the local area to reside in the property.

The reason why the Appellant argued that the permission was not implemented was owing to conditions attached to the permission never having been discharged. The Inspector agreed with this and found that a contamination condition, which required contamination surveys to be conducted prior to the commencement of development, did need to be discharged prior to the development commencing.

The Inspector noted that the Council’s concessions during cross examination ultimately undermined their case on this:

  1. In cross examination at the Inquiry the PA’s witness conceded that Condition 2 related to whether the site was safe for human habitation, and consequently the condition was directly related to the subject matter of the planning permission, a dwelling. However, in his view, Condition 2 did not go to the “heart of the matter.” The reason he gave for this was because the development was for the conversion of an existing building, with only a very small extension to it. It was not for a new building. Furthermore, as the contamination related only to the possibility of elevated soil lead conditions, it was a condition that in his view, only related to the garden area and an investigation of the soils around the existing building. Therefore, despite the construction of the wording of the condition, it did not need to be a pre- commencement condition and it was not necessary for it to be discharged before the commencement of development, only prior to occupation.
  2. However, the letter from Derbyshire Dales District Council’s Pollution Control Officer, dated 25 July 2007, referenced in Condition 2, is clear that this condition would be necessary in order to protect the health of any residents from hazards arising from natural contamination of the site which might be brought to light by development of the land. In cross-examination the PA’s witness confirmed that he deferred to the Pollution Control Officer for expert advice on such matters.

Thus, the Inspector allowed the appeal.

Killian Garvey was instructed by Rawdon and Claire Gascoigne at Emery Planning.


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