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PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 22/00555/LAW Applicant : Mr Roy Tilleard Proposal : Demolition works approved under PA13/00547/B. Works carried out in mid 2015 and secured approval in perpetuity Site Address : Lanjaghan Farm Abbeylands Isle Of Man IM4 5EQ
Principal Planning Officer: Abigail Morgan Photo Taken :
Site Visit :
Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use Declined Date of Recommendation: 01.07.2025 __
Reasons for Refusal
R : Reasons for Refusal
R 1. The application for a Certificate of Lawfulness is refused on the grounds that the development is not lawful due to non-compliance with a condition precedent attached to the original planning permission. The applicant has failed to provide evidence that the required bat survey was submitted to and approved by the Department before development commenced. This condition is considered a condition precedent, as it goes to the heart of the permission and is necessary to ensure compliance with statutory environmental protections and policies of the Strategic Plan. Specifically, the planning permission required the submission and approval of a bat survey prior to the commencement of development or demolition, in order to assess the potential impact on protected species.
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Officer’s Report
1.0 Main Issue/ Application
1.1 The description on the form states; "Demolition works were approved under PA13/00547/B. Works were carried out in mid 2015 and secure approval in perpetuity". Therefore the main issue is that the demolition of buildings is sufficient to be commencement of 13/00547/B - Lanjaghan Farm, Lanjaghan Road, Abbeylands, Isle of Man. IM4 5EQ - conversion of existing farm building to provide twelve tourist accommodation units with ancillary support and leisure facilities, and erection of a replacement farm complex comprising of agricultural buildings and a farm workers dwelling with detached garage - approved at appeal on the 9th September 2014.
1.2 In this case it turns on whether the works that were carried out constitute development - which includes the demolition of the buildings and condition 3 and whether any of the remaining conditions are true conditions precedent.
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2.0 Planning Approval
2.1 Full planning approval was granted on 9th September 2014 for conversion of existing farm building to provide twelve tourist accommodation units with ancillary support and leisure facilities, and erection of a replacement farm complex comprising of agricultural buildings and a farm workers dwelling with detached garage.
The first condition is the standard time limit, stating development must be begun before the expiration of four years from the date of the approval.
Other conditions 2. The development hereby permitted shall not be carried out except in full accordance with the following plans: 25, 500/A, 50, 51, 01, 02, 03, 04, 05, 06, 07, 21, 10TS006-01-Sheets 1, 2 and 3 12TS020-01, SF/100, SF101, SF102, SF200, SF300, 100, 101, 200, 201, 300 and 301, all received on 3 Mary 2013; and 20/A received on 29 July 2013.
Reason: For the avoidance of doubt
No demolition or development shall be carried out on the site until the road improvement works to Lanjaghan Road have been carried out in accordance with the details submitted on Drwg No. 20 Rev. A received on 29 July 2013.
Reason: For the avoidance of doubt.
The developments hereby approved shall not be occupied until space has been laid out within the site in accordance with the approved plans for the parking and manoeuvring of vehicles. Such areas shall not thereafter be used for any purpose other than the parking, turning and loading of vehicles associated with the development, and shall remain free of obstruction for such use.
Reason: To ensure that sufficient provision is made for off-street parking and turning of vehicles in the interests of highway safety.
No development shall commence until details of the means of disposal of foul and surface
water drainage has been submitted to and approved in writing by the Planning Authority. The approved details shall be implemented prior to, or concurrently with, the development and the use may not commence until the drainage works relevant to that part of the development are completed.
Reason: To ensure satisfactory drainage of the site.
No development shall commence until details of the arrangements for the storage and disposal of waste from the tourist units, the farm worker's dwelling and the new farm complex, have been submitted to and approved in writing by the Planning Authority. The storage and disposal of waste shall thereafter be undertaken only in accordance with the approved arrangements.
Reason: In order to prevent pollution of the local environment.
No development shall commence until details of hard and soft landscaping of the tourist units, the farm worker's dwelling and the new farm complex, have been submitted to and approved in writing by the Planning Authority. The landscaping works shall be carried out prior to the occupation of any part of the development, or in accordance with a programme agreed
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in writing with the Planning Authority. Any trees or plants indicated on the approved scheme which, within a period of 5 years from the date of planting, die, are removed or become seriously damaged or diseased shall be replaced during the next planting season with other trees or plants of the same species and size. All hard landscaping works shall be permanently retained in accordance with the approved details.
Reason: For the avoidance of doubt.
No development shall commence until details of earth-moving and finished ground levels throughout the site, including the ponds near the tourist units, have been submitted to and approved in writing by the Planning Authority. The development shall be carried out in accordance with the approved details.
Reason: For the avoidance of doubt.
No development shall commence until a schedule of materials and finishes to be used in the construction of all external surfaces, including roofs, walls, doors and windows, has been submitted to and approved in writing by the Planning Authority. The windows in the farm worker's dwelling shall have sliding sashes. The development shall be carried out in accordance with the approved schedule.
Reason: For the avoidance of doubt.
Except during the construction of the development, there shall be no external storage of materials.
Reason: To protect the amenities of adjoining land users.
Notwithstanding the provisions of the Town and Country Planning (Permitted Development) Order 2012 (or any order revoking and re-enacting that Order with or without modification) there shall be no extension or enlargement of the farmworkers' dwelling, including additions or alterations to its roof, and no garages or other free-standing buildings within its curtilage other than those expressly authorised by this approval, without the prior written approval of the Planning Authority.
Reason: To control the development in the interests of the amenities of the surrounding area.
No development shall commence until details of the location and design of the entrance gates, piers, walls and cattle grids for the tourist units, the farm worker's dwelling and the new farm complex have been submitted to and approved in writing. The development shall be carried out in accordance with the approved details.
Reason: For the avoidance of doubt.
Notwithstanding the provisions of the Town and Country Planning (Permitted Development) Order 2012 (or any order revoking and re-enacting that Order with or without modification) no other gates, fences or other means of enclosure may be erected without the prior written approval of the Planning Authority.
Reason: To control the development in the interests of the amenities of the surrounding area.
The tourist units hereby approved shall not be used or occupied other than for the purpose of short-let holiday accommodation and shall not be let as separate dwellings. None of the units shall be occupied by the same person(s) for a single period or cumulative periods exceeding 28 days in any calendar year, or such period (for example during the winter) as may
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be first approved in writing by the Planning Authority. Written records of letting and occupants shall be made available for inspection by the Planning Authority at any time.
Reason: To ensure that the development is only used and occupied as short let holiday accommodation and to prevent the creation of an unjustified separate dwelling in the countryside.
If any part of the buildings in the existing farm complex, shown on the submitted plan as to be repaired or retained in connection with the proposed tourist units, is removed, demolished or falls down, further approval for its re-building will be required. There is no guarantee that approval will be granted.
Reason: For the avoidance of doubt.
No development or demolition shall take place until a bat survey has been submitted to and approved in writing by the Planning Authority. The bat survey shall identify impacts on bat species together with mitigation, where appropriate, including a timetable for its implementation. The development shall not be carried out unless in accordance with the approved details.
Reason: To provide adequate safeguard for the bats.
The occupation of the farm worker's dwelling shall be limited to a person engaged or last engaged solely in agriculture on the Isle of Man, or a widow or widower of such a person, or any resident dependents.
Reason: For the avoidance of doubt.
No development shall commence until a phased programme for the construction of the farm worker's dwelling and the new farm complex has been submitted to and approved in writing by the Planning Authority. The farm worker's dwelling and the new farm complex shall be constructed in accordance with the approved programme.
Reason: For the avoidance of doubt.
No development shall commence until a scheme for the mitigation of noise at the new farm complex has been submitted to and approved in writing by the Planning Authority. The new
farm complex shall be constructed in accordance with the approved noise mitigation measures.
Reason: To safeguard the amenities of prospective occupiers.
3.0 Certificate of lawfulness Test
3.1 The Court held in F W Gabbitas v Secretary of State for the Environment and Newham LBC [1985] that the relevant test of evidence for certificate of lawfulness applications is on "the balance of probability". The burden of proof is upon the applicant to show on a balance of probabilities the claimed or proposed use or operation is lawful. The Courts have held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the Local Planning Authority have no evidence of their own, or from others, to contradict or otherwise make the applicant's version of events less than probable, then there is no good reason to refuse the application, providing the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability".
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4.0 When development has begun
4.1 There is no IOM legislation about what actually constitutes a start of a development, so we would look to adjacent jurisdictions case law. In the absence of a relevant Manx authority on a particular point of law the Staff of Government Division held in Frankland-v-R 1978-80 MLR 275 at page 291 that "the correct principle in our view is that decision of English Courts, particularly the House of Lords and Court of Appeal, are persuasive in the Manx Courts but not binding. It is of course predicated on the basis that the statutes are similar, which in relation to the 'start of development' is considered to be the case in this instance.
4.2 On current case law, the works undertaken to implement a planning permission do not have to be particularly costly or extensive, nor do they have to be carried out with any intention to complete the development. The courts have generally taken a lenient approach towards what operations suffice in order to treat a permission as having been implemented within the time limit. However, they must genuinely be done for the purpose of carrying out the development. Examples of case law in this area include:
o High Peak Borough Council v Secretary of State for the Environment and Courtdale Developments [1981] JPL 366, where the digging of a trench, even where that trench was subsequently backfilled, was held to be sufficient to implement a permission
o Malvern Hills DC [1982], where the pegging out of the centre line of a road on a site with permission for housing development was held to involve an operation in the course of laying out or constructing a road
4.3 Case law Malvern Hills DC v SSE & Barnes and Co [1982] JPL 439 has established that the threshold for what is deemed to be material operations is low, where the marking out of a line and the width of a road with pegs amounted to "material operations" within s56(4)(d). Furthermore, the case of Spackman v SSE and Another [1977] 33 P. & C.R. 430 concerned whether or not material operations were carried out for the construction of a residential dwellinghouse. In that case no foundations had been laid and the works that had been carried out included a partially constructed soakaway and drainage trenches in each of which had been laid piping leading to the soakaway.
4.4 The Department has in general accepted the principle of the above cases, and since then has produced some guidance on the website as to what is considered to be commencement, https://pabc.gov.im/planning/commencement-of-development/.
4.5 As a general guide in considering whether development has commenced regard is had to whether or not the Department has taken the above case law and operationally applies the following: o works have taken place that are sufficient to be considered development (i.e. they are not de minimis) and beyond anything allowed for as Permitted Development; o works have taken place that are related to the development which has been approved (i.e. in accordance with approved plans); and o any prior commencement planning conditions have been complied with.
4.6 There is nothing in law that requires something to benefit from building control approval to constitute a "material operation" for the purposes of the Act. Indeed, they are entirely separate processes.
5.0 Demolition
5.1 I am not aware of any authoritative Manx case-law specific to this topic and in this instance English jurisprudence is not considered to be of assistance because the basics are not similar in
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relation to full demolition. Nonetheless it has long been held by the Department that full demolition of a detached building is not development for which approval is required, but that as per Section 6 the demolition of a building which is attached to another building, where the other building is not also demolished; and that the demolition of part of a building, where the rest of the building is not also demolished is development.
6.0 Scope to impose conditions
6.1 S10 1 a and 2 a "such conditions as they think fit". that conditions may be imposed "(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appear to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission.
7.0 Was the permission implemented lawfully, and in time?
7.1 To confirm whether a development is authorised in planning terms, it is important to establish that the planning permission was extant at the time the development was carried out.
7.2 A planning permission is extant if: o all pre-commencement conditions have been adequately satisfied before the expiry of the time limit for implementation, and the time limits set by condition for starting the development and/or submitting reserved matters have not expired, so that development can still be begun before the expiry of the time limit, or o development comprising the development or the use authorised by the planning permission, has begun before the time limit expired, in accordance with the pre- commencement conditions
7.3 As explained above, on current case law, it does not matter if the works carried out to implement the permission were carried out without the intention of immediately completing the development, and instead, were carried out purely to keep the permission alive (see: Riordan Communications v South Bucks DC [2000]). The judge held, following the East Dunbartonshire Council v Secretary of State for Scotland [1999] case, that there is nothing in the Town and Country Planning Act 1990 to indicate the requirement of an intention. It is simply a question of fact and degree whether the works were done in accordance with the permission and whether they were material in the sense of not being de minimis (trifling). Therefore, the material operation must be 'comprised in the development', ie fall within the terms of the permission.
7.4 Further, if the material operations or changes in use relied on to implement a permission are carried out in breach of pre-commencement planning conditions attached to that permission, implementation may be unlawful and the permission could have lapsed.
8.0 Breach of pre-commencement condition
8.1 The question of when development was 'begun' is complicated where works are carried out in breach of a pre-condition to lawful development.
8.2 In F.G. Whitley & Sons v Secretary of State for Wales and Clywd County Council [1992] 64 P & CR 296 the Court of Appeal established the following principle, which is now known as the Whitley principle: o When reading the planning permission together with the conditions, is the development (as a whole) permitted by the planning permission and therefore lawful? In other words, have all "true" conditions precedent been complied with? The condition needs to make it clear that
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the actual start of the development is conditional upon that condition being satisfied to be a "true" condition precedent. o If the development does not comply with the conditions, it is a breach of planning permission and therefore unauthorised and unlawful for planning purposes.
8.3 It is worth noting that limited exceptions to the Whitley principle apply.
8.4 In R Hart Aggregate Ltd v Hartlepool Borough Council 2005, the Court examined the position that would have applied if in that case here had indeed been a breach and the judge identified a 3-stage test to decide whether a development is unlawful: o Has there been a breach of condition?
o If yes, does the Whitley principle apply? In other words, is the effect of the breach of condition something which makes the whole development unlawful? o If yes, do any of the exceptions such as irrationality, abuse of power by the local authority in taking enforcement action or compliance in substance, apply?
8.5 When applying the above test it is suggested the following questions are considered: o Is the condition phrased as an express requirement or prohibition? Conditions are never implied.
o What is the effect of the condition when read in the context of the, planning permission as a whole? o Does the condition go to the "heart of the planning permission" so does failure to comply makes the entire development unlawful? In other words is the development prohibited until the condition has been satisfied.
8.6 Some confusion has arisen from the Hart case with regards to the wording of conditions and establishing whether or not conditions worded in a certain way can be concluded to be True Condition Precedents. Subsequent cases have explored this point and one such case which is also key to the determination of this application is Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011], whereby the Court of Appeal upheld a planning inspector's decision that access works for a residential development site were carried out in breach of a condition precedent. This meant that, in accordance with the Whitley principle, development had not commenced within the time limit imposed by the planning permission. In this case the Council refused to issue a certificate of lawful use on the grounds that Greyfort had failed to prove that the permission had been lawfully implemented and was currently extant. Two points to consider are;
Whether the works carried out are sufficient to amount to commencement of development, and 2) Whether there was compliance with the pre-conditions of the planning permission.
8.7 The Court of Appeal also found in this case that access works for a residential development site were carried out in breach of a planning condition that required the ground floor levels of the building to be agreed with the local planning authority before any work was commenced on the site.
8.8 This meant that, in accordance with the Whitely principles the planning permission had not been lawfully implemented. After consideration of the language used in the condition it was concluded the relevant condition was clearly phrased as an express prohibition on development and was sufficient to amount to a true condition precedent. In addition, the planning inspector was entitled to find that the ground floor levels were fundamental to the development and that the condition went to the heart of the planning permission.
8.9 The general rule established in Whitley & Sons is that development which breaches a pre- commencement condition is not authorised by the planning permission, and cannot therefore
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implement the planning permission and keep the permission alive. There are very limited exceptions to the rule, the most significant being where: o a condition requires an approval before a specific date and that approval has been applied for by that date, but is not given until after that date so that no enforcement action could be taken. In these circumstances, works carried out before the specific date and in accordance with the approval can amount to a start to development o the condition has in substance been complied with, although the formalities, including the formal approval of the condition, have not been completed before work is begun, yet the works have been carried out in compliance with the approved plans and with the full knowledge of the LPA, the work can nevertheless amount to lawful implementation, because it would be unreasonable in those circumstances for the LPA to determine that the permission has not been implemented o it would be unlawful in accordance with public law principles, in particular irrationality or abuse of power, for an LPA to take enforcement action to prevent development proceeding. Even where that development is in breach of planning control it can nevertheless effectively commence development where enforcement would be irrational within the meaning of the Wednesbury principle or an abuse of power
8.10 Additionally, Hart Aggregates leaves scope for the argument that works carried out in breach of conditions, including pre-commencement conditions, can nevertheless be taken to lawfully implement a planning permission, provided the condition does not go to the heart of the planning permission.
8.11 The fact that works subsequently become immune from enforcement action does not change the fact that they were incapable of being a lawful commencement of the permission when they took place.
8.12 Planning case law indicates however, that development in contravention of a condition which requires certain actions prior to commencement of the development may not fall within the 'Whitley Principle' if the condition does not 'go to the heart' of the planning permission. Hence the breach of a pre-commencement condition (or 'condition precedent') does not render the development as a whole unlawful if in fact it is not a 'true condition precedent' (other exceptions may also apply).
8.13 Having regard to the current position in law, it needs to be determined whether the outstanding conditions are genuine 'condition precedent' (going to the heart of the matter with which the permission is concerned such that it is essential that it be complied with before development commences). Secondly, if so, whether the matters subject to the conditions had already been adequately addressed by the time it was imposed.
8.14 The Court of Appeal established in F G Whitley & Sons v SSW and Clwyd CC [1992] JPL 856 that if development contravenes the conditions attached to a planning permission it cannot be properly described as commencing the development authorised by that permission.
9.0 Evidence
9.1 The application seeks certification as to whether or not the demolition of the buildings and the highway works undertaken as per condition 3 are sufficient to constitute implementation / commencement of the development and so keeping the application alive.
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1. LDC Form The form states "Demolition works were approved under PA13/00547/B. Works were carried out in mid 2015 and secure approval in perpetuity. Recent enquiries to the department have resulted in advice to potential purchasers that there is no extant approval. This is not the case and the application seeks to provide written confirmation of such." 2. Covering Letter makes reference to the following; o refer particularly to the approved drawings condition no 2 which clearly identifies the demolition plan for the entire development as being one of the approved drawings o confirms the demolition works took place during July and August 2015 o includes several photos illustrating the demolition with data capture shown o the first condition clearly requires that commencement of the works takes place within the four year period - which has occurred and is fact. 3. Also included; o Location plan o Appeal decision 13/00547/B
Information submitted by Third Parties None received
Information from the Department's file A review of the planning application file was carried out and the following was noted; o Para 3.2 of Depts Planning statement (in relation to the appeal) states; o "... 1. The demolition of a number of farm buildings, six of which are of considerable size. The buildings being removed are typical farm units constructed of rendered masonry and steel frames. Planning approval is not required for these works, but is included in the description of works for completeness and to aid understanding of the development process." o Appeal decision notice has two conditions that state 'no development or demolition shall take place' o C3 No demolition or development shall be carried out on the site until the road improvement works to Lanjaghan Road have been carried out in accordance with the details submitted on Drwg No. 20 Rev A received on 29 July 2013 - Reason: for the avoidance of doubt o C16 No development or demolition shall take place until a bat survey has been submitted to and approved in writing by the Planning Authority. The bat survey shall identify impacts on bat species together with mitigation, where appropriate, including a timetable for its implementation. The development shall not be carried out unless in accordance with the approved details - Reason: to provide adequate safeguarding for the bats. o There are a number of conditions that state 'No development shall commence ...'. Conditions; 5 (foul and service water drainage) 6 (storage and disposal of waste) 7 (landscaping) 8 (earth moving and finished ground levels) 9 (schedule of materials and finishes) 12 (entrance gates etc) 18 (construction programme), and 19 (noise mitigation). o The file contains no evidence that the above conditions have been submitted for approval.
9.2 Points of Clarification Sought An initial review resulted in the following points of clarification being sought;
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It is not clear from the photographs which buildings you are referring to - please could you confirm this?[Agent] All of those marked for demolition. These have been removed to allow residual surveys to be carried out. The bat survey needs to be relevant and the delay to the development would require a second survey to be done.
In addition I note that there were a number of pre-commencement/prior to conditions? Please could you review the paperwork to see if they have been discharged?[Agent] Regrettably all of my paperwork on the file has been destroyed as we are only obliged to keep for 6 years following approval.
In particular I note that condition 3 states;
[Agent] I can confirm that these improvement works were carried out under the supervision of the highway officer - Hugo McKenzie - now Clerk to Castletown Commissioners. The condition was discharged. See attached comms with Jennifer Chance at the time.
Conditions 5 - 6 - 7 - 8 - 9 - 11 - 16 - 18 all required the submission of information prior to a commencement.[Agent] The remaining conditions except 16 relate to development, none of which has yet commenced. The referred to bat survey would need to be refreshed and will be done prior to any commencement.
The question whether works, which are undertaken in breach of a condition imposed on the permission, are necessarily unlawful, with the consequence that they would not suffice to keep the permission alive has been the subject of numerous decisions. [Tony Lloyd-Davies] As this is related to the current approval are other decisions pertinent in this case?
10.0 Assessment
10.1 The fundamental questions when determining this application for a certificate of lawful development to establish that planning permission 13/00547/B was lawfully implemented are:
Whether the demolition and highway works carried out are sufficient to amount to commencement of development;
Whether the "Whitley" principle has been met, i.e. have all "true" conditions precedent been complied with
10.2 In answer to question 1, it has been a long held view of the Department that full demolition of a building is not development that would require planning approval and those attached to others buildings where they remain would be development. The agent for the applicant has confirmed that all the buildings marked for demolition in the application has been demolished. This would those shown the submitted Demolition Plan Drwg 21. The majority of the buildings appear to be detached buildings, however structures 1, 8, 15 and 9 appear to be attached to buildings that remain. The aerial from 2012 show that they were attached to buildings that remain.
10.3 The Department are of the view that the demolition of those structures/buildings 1, 8, 15 and 9 constitute a material operation. These works, in line with case law such as Riordan Communications Ltd v South Bucks District Council [2000] and Malvern Hills DC v Secretary of State for the Environment [1982] JPL 439 would be considered development sufficient enough to constitute commencement.
10.4 Irrespective of whether operational works sufficient to constitute a commencement of a permission have taken place it can also sometimes be the case that failure to comply with conditions precedent attached to a planning permission before the deadline for commencement of that permission has passed causes that permission to expire. It must therefore be
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established that any conditions not yet discharged, although pre-commencement, go to the heart of the approval. It is accepted that even if worded in the form of an express prohibition, failure to comply with the condition in question might not take the development outside the scope of the permission if the condition deals only with some minor detail. 10.5 With this in mind, each condition yet to be discharged needs to be assessed. However it needs to be noted that the agent has commented that ' The remaining conditions except 16 relate to development, none of which has yet commenced.'
11.0 No Development or Demolition Conditions
11.1 There are two conditions that are 'conditions precedent' requiring the submission of various details regarding the development and their written approval or requiring works to be done before the approved development started - C3 access and C16 bat survey. Condition 3 The agent has submitted evidence that condition 3 the access has been carried out. This is not disputed. Condition 16 C16 No development or demolition shall take place until a bat survey has been submitted to and approved in writing by the Planning Authority. The bat survey shall identify impacts on bat species together with mitigation, where appropriate, including a timetable for its implementation. The development shall not be carried out unless in accordance with the approved details - Reason: to provide adequate safeguarding for the bats.
11.2 Condition 16 differentiates between development and demolition which would fit with the Departments long standing position that detached buildings do not need planning approval to be demolished and it appears that the above condition sought to ensure that bats were safeguarded. Notwithstanding this there were some buildings were attached which would be considered to fall within the definition of development (Section 6 (e) TCPAct 1999).
11.3 There is no evidence that this condition was complied with, there are no records of Bat Survey being submitted to deal with C16.
11.4 It is considered that the way C16 is worded prohibits any development or demolition until the terms of the condition have been satisfied, which is not the case in this instance but demolition works have taken place and then goes onto state 'the development shall not be carried out unless in accordance with the approved details'. In this instance it is considered that the Dept had clearly made a condition requiring some further action before the commencement of development.
11.5 The demolition of a number of buildings took place before C16 requiring submission and approval of survey details had been complied with. Notwithstanding the Department's long standing that the demolition of a detached building is not development some of the buildings were attached and as such their demolition would be considered development which was carried out prior to compliance with C16. The first part of the condition is expressly prohibitive of development commencing prior to the carrying out and approval of a bat survey. The condition requires the identification of any impacts on bats and proposed mitigation together with a timetable for implementation. The reason for the condition is to provide adequate safeguarding for the bats which are a protected species. Due to the extent of demolition such details are were obviously considered to be an essential component of the development and prior agreement was deemed to be wholly appropriate in the interests of a protected species. To suggest that that such issues could be resolved after development is commenced and at which point any bat habitat or species may have been lost or destroyed would invalidate the reason for the survey.
11.6 Taking into account the case law mentioned above and the terms of the approval as a whole it is considered that the requirement for the bat survey details to be agreed prior to the
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commencement of development was fundamental to the development permitted. In this respect, condition 16 goes to the heart of the permission and is therefore a true condition precedent.
11.7 This condition is phrased as an express requirement and it is considered that when read in the context of the, planning approval as a whole goes to the "heart of the planning permission" and as such failure to comply makes the entire development unlawful. In other words the development prohibited until the condition has been satisfied.
12.0 Conclusion
12.1 The application for a Certificate of Lawfulness is refused on the grounds that the development is not lawful due to non-compliance with a condition precedent attached to the original planning permission. Specifically, the planning permission required the submission and approval of a bat survey prior to the commencement of development or demolition, in order to assess the potential impact on protected species.
12.2 The applicant has failed to provide evidence that the required bat survey was submitted to and approved by the Department before development commenced. This condition is considered a condition precedent, as it goes to the heart of the permission and is necessary to ensure compliance with statutory environmental protections and policies of the Strategic Plan.
12.3 In accordance with established case law (e.g., Whitley & Sons v. Secretary of State for Wales [1992]), failure to comply with a condition precedent renders the development unlawful from the outset. As such, the development cannot become lawful through the passage of time alone and does not benefit from immunity under Paragraph 3 of Schedule 4 of the Town and Country Planning Act 1999.
12.4 The burden of proof rests with the applicant to demonstrate, on the balance of probabilities, that the development is lawful. In this case, insufficient evidence has been provided to show that the bat survey condition was complied with prior to commencement. Therefore, the application fails to meet the requirements of section 24 of the Town and Country Planning Act 1990.
13.0 Recommendation
13.1 Based on the information available given one of the conditions was a bat survey and the works to commence was a demolition and some access works were required before any works including demolition, it appears that on the face of it that they would go to the heart of the approval and as such would be a true condition precedent and any works undertaken without compliance (in breach of said conditions) with them then applying the Whitely principle the conclusion would be that on this basis the works undertaken cannot be properly described as commencing the development authorised by that permission. Consequently a Certificate of Lawfulness should not be granted.
14.0 Interest Party Status
14.1 As a CLU this is not required to be assessed.
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I can confirm that this decision has been made by the Director of Planning and Building Control in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation
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and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded interested person status, and/or rights to appeal.
Decision Made : Certificate of Lawful Use Declined
Date : 10.07.2025
Determining Officer
Signed : J CHANCE
Jennifer Chance
Director of Planning and Building Control
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