Developers and builders can find themselves on the wrong side of the system. Contractors are required to observe any planning laws and permissions granted in respect of a project. If the contract requires the builder to do something that would contravene the planning permission, instructions possibly varying the work will have to be given and consequential extensions awarded and associated loss and expense allowed.
Non-compliance with planning legislation can result in enforcement proceedings against not only the developer but also the builder – with accompanying criminal sanctions.
At that stage it is usually too late to argue that the precise planning permission granted ought not have been granted in its particular terms, although it is sometimes permissible to apply for retrospective changes.
Two recent cases in the Court of Appeal illustrate the difficulties a developer can face. In The Queen (on the application of Jones) vs Mansfield District Council (23 September 2003), Dawn Jones objected to an application for planning permission and later to the legality of a permission granted in respect of land for use as an industrial site.
The council had not called for an environmental impact assessment – something that may have been desirable given that there were bats (protected by law) in the vicinity. There was also evidence that the site was an important roosting and feeding site for golden plovers.
The planning process can be delayed for a long time by carefully targeted objections and challenges
The court was not prepared to interfere. The question of whether the development would have a significant environmental impact was a matter for the council, it said.
The second case, Mount Cook Land vs Westminster City Council (14 October 2003), involved different considerations. The tenant (on a 999-year lease) of a building on Oxford Street, London, obtained planning permission for relatively minor external alterations.
The landlord, Mount Cook, had tried to bring pressure on the tenant to accept different development proposals, which had been placed before the council as better than the tenant's. Mount Cook unsuccessfully applied to the court for judicial review of the council's decision. The court said that save in exceptional circumstances, alternative proposals were not material; generally councils did not have to take them into account.
Cases like these demonstrate that as long as planning authorities go through the right hoops it is difficult to challenge them effectively. However, they also show that the planning process can be delayed for a long time by carefully targeted objections and challenges. This will delay the construction of a project and result in increased costs.
For builder developers or design-and-build contractors that take on the contractual responsibility for securing planning permissions, a sufficient time buffer should be built in to any programme. Firms also need to watch out for human rights legislation. In the Jones case, there was lengthy citation of European cases, European directives and the like.
Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports.