Case law: Retrospective approval of pre-building conditions

6th May 2014

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Related tags

  • Energy ,
  • Local government ,
  • Waste ,
  • Pollution & Waste Management


Paul McParland

Jen Hawkins from LexisPSL outlines a recent High Court case that demonstrates local authorities can discharge pre-commencement conditions retrospectively

In Ellaway v Cardiff County Council & Others [2014] EWHC 836, the High Court ruled as lawful the authority's decision to retrospectively approve the discharge of the pre-commencement conditions and to not take enforcement action.

In 2010, the local planning authority (LPA) granted Viridor permission to build an energy-from-waste facility in Cardiff. This was subject to a number of conditions that had to be satisfied before work could start. However, the waste company began work on the site in July 2012 before the pre-commencement conditions had been met.

In February 2013, the LPA resolved against taking enforcement action, and decided to lawfully discharge the remaining conditions.

Under the so-called "Whitley principle" works that contravene conditions cannot be regarded as having started lawfully. However, in deciding not to take action against the unlawful commencement of the development, the LPA relied on a well-established exception to that principle. Namely that:

  • the work undertaken was carried out in strict conformity with Viridor's applications for discharge of the conditions;
  • the applications for discharge had been made before the work started; and
  • the LPA had resolved that it was not expedient to take enforcement action against Viridor.

The court recognised that approval should be granted retrospectively. The purpose of an exception to the Whitley principle is to avoid unnecessary formality, and wasted time and expenditure.


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