Conditions precedent and the Whitley principle

A condition precedent is a planning condition that must be discharged before development starts, and the penalty for ignoring one can be that the permission was never lawfully implemented at all. That is the Whitley principle. It still catches experienced agents, usually on old permissions bought with a site. The courts have narrowed it since 1992, so not every condition worded to bite before development starts carries that consequence, and part of the work in condition precedent planning advice is telling the two apart.

What makes a condition a true condition precedent

Wording alone does not settle it. Councils attach dozens of conditions that use the phrase "prior to commencement", and many of them regulate how the development is carried out rather than whether it may be carried out at all.

In R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin), Sullivan J drew the line between a condition that goes to the heart of the permission and one that does not. A condition requiring a scheme of working to be approved before mineral extraction began was held not to be a true condition precedent, because the permission could still operate sensibly without treating a breach as fatal.

Three features tend to mark out the real thing:

• the condition is framed as a prohibition on starting, not as a duty to do something during the works
• the subject matter defines what was permitted, such as slab levels, remediation of contamination, or the approval of details without which the scheme has no fixed form
• no other reading lets the permission function

Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908 is the cautionary one. A 1974 permission required ground floor slab levels to be approved before work began. They never were. The Court of Appeal held the development had not been lawfully begun and the permission had lapsed, whatever the parties had assumed in the intervening decades.

Why work started in breach may not count

Section 56 of the Town and Country Planning Act 1990 sets out when development is taken to have begun. It lists material operations: construction work, demolition, digging a trench for foundations, laying underground mains or pipes, forming a road, and a material change of use.

The Whitley principle adds a gloss to that list. Operations carried out in breach of a true condition precedent are not carried out under the permission, so they cannot be the material operation that starts the clock. In Whitley and Sons Co Ltd v Secretary of State for Wales (1992), the question was put as whether the operations were authorised by the permission at the time they were done. If they were not, they count for nothing.

The practical trap is that the works look perfectly normal on site. A digger in a foundation trench does not announce which conditions were outstanding that morning.

The effect on the permission itself

Most permissions carry a three year time limit for implementation under section 91 of the 1990 Act. If the only start on site was unlawful and the limit then passes, there is no permission left to build under.

That has two consequences worth spelling out to a client. The development becomes unauthorised in its entirety, not merely in the detail the condition covered, so enforcement can be directed at the whole thing. And a purchaser's solicitor who raises it on a later sale will not be satisfied by photographs of a trench.

Enforcement time limits in England were extended to ten years by the Levelling-up and Regeneration Act 2023, replacing the previous four year rule for operational development and changes of use to a single dwellinghouse. Commencement applies from a set date and to breaches occurring on or after it, so check the position that applies to your site rather than assuming.

An illustrative example

A small infill site of four houses has a condition requiring a remediation strategy for made ground to be approved before development starts. The contractor strips the site and pours foundations while the strategy is still with the contaminated land officer. Nothing else on site is wrong. But if that condition is a true condition precedent, the start is not a lawful implementation, and if the three year limit expires two months later the permission goes with it. This example is illustrative.

Discharging late and the Whitley exception

The exception recognised in Whitley itself is narrow. Where the approval the condition calls for is granted before the permission's time limit expires, the earlier operations can be treated as having been done under the permission after all. Late discharge cures the breach only while there is still a live permission to cure.

Once the limit has gone, the exception has nothing to work on, which is what Greyfort decided. An application under section 73A of the 1990 Act for development already carried out is then the usual route, with a fresh planning judgement and no guarantee about the outcome.

Where the condition is unworkable rather than merely late, a section 73 application to vary or remove it is often better than a discharge application. Do it before the start on site, not after.

If the council sits on a discharge application past the statutory period, the appeal against non-determination is available, and lodging it protects the position while the clock runs. A decision can also be delayed at the point of issue by a holding direction from the Secretary of State or the Mayor, which is worth checking on referable schemes.

The statutory brake on pre-commencement conditions

Section 100ZA of the Town and Country Planning Act 1990, inserted by section 14 of the Neighbourhood Planning Act 2017, stops an English local planning authority granting permission subject to a pre-commencement condition without the applicant's written agreement. Regulations set out the notice the authority must serve and the short period the applicant has to respond.

Silence is not neutral. If the applicant does not respond within the prescribed period, the authority may impose the condition anyway, so the notice needs diarising when it lands.

The point of the provision was to reduce the number of conditions that hold up a start on site. It has trimmed some of them. It has not removed the category, and it does nothing about conditions on permissions granted before October 2018.

Keeping the evidence of discharge

A discharge is only as good as the paper that proves it. Keep, for each condition:

1. The decision notice discharging it, with its date and reference.
2. The submitted documents the notice approves, by title and revision.
3. Dated site photographs from before the first material operation.
4. The date and description of the first material operation itself.

Many of the documents conditions call for are the standard technical reports a scheme needs anyway, and the full list of report types by category is a quick way to check which of them your conditions are asking for. A remediation strategy, an arboricultural method statement and a drainage scheme are the three that most often sit unresolved when the contractor wants to start.

Drafting and negotiating conditions to avoid the trap

At decision stage, push for triggers other than commencement. "Prior to the commencement of above ground works" or "prior to first occupation" removes the risk entirely for anything that does not need settling before the ground is broken.

Where the officer insists, ask what the condition is for. A condition that protects a receptor during construction, such as tree protection fencing, does need to precede the works. One that fixes a material palette does not.

Then run a condition audit before anyone goes on site. Read every condition in sequence, mark the trigger, and confirm in writing to the client that nothing outstanding bites. It takes an hour and it is the best hour you will spend on the job.

Enter your postcode on PlanScope to see which reports your site is likely to need before those conditions are written.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.