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The future of a 315-home 32 acre housing estate in the River Idle valley at Retford, Nottinghamshire, on which 64 h...
The future of a 315-home 32 acre housing estate in the River Idle valley at Retford, Nottinghamshire, on which 64 houses have already been built, and 50 new owners moved in, was today thrown into doubt by a court of appeal ruling in London.

Developer, Henry Boot Homes Limited, failed in its challenge to a high court decision in March that it did not have planning permission from Bassetlaw DC for the scheme.

The legal battle centred on the part-built development at Hallcroft Road, Retford, Nottinghamshire, for which Bassetlaw DC claimed planning permission had now lapsed because planning conditions were not met.

In the high court Henry Boot asked Mr justice Sullivan to rule that the development started before 2 August 2000, that this was within the set time limits, and that in those circumstances the council was not able to deny it had lawful planning permission. However, in the decision challenged in the court of appeal the judge dismissed their application. And today his ruling was backed by the appeal court.

The developers bought the site in 1994, and the following year gained planning permission to build 315 houses, subject to conditions, including a requirement that work should start by 2 August 2000.

They claimed building work started in January 1996, and people moved into the first house in August that year. Now 64 houses have been built, and 50 are occupied, the court heard.

But the council claimed that Henry Boot Homes failed properly to 'start' the development by the deadline, because it did not comply with all the necessary pre-conditions before commencing work. It claimed that as a result outline and detailed planning consents both lapsed.

The company disputed this, and argued that the council agreed to work starting before the conditions were complied with. This, the developer claimed, was the council's usual practice, and council officers did not indicate that works were outside the planning permission.

It claimed that the council agreed, by its conduct, that the work carried out on the site came under the outline permission and detailed consent, regardless of whether or not the conditions were satisfied before work started.

The developer claimed that it submitted proposals to satisfy the conditions in March 2000 but said that, despite requests, the council would not allow its officers to meet to discuss proposals between March and July. Then, in July 2001, the council's planning committee decided to refuse to give approval to most of the conditions.

The company argued that it had a 'legitimate expectation' that the council would treat the development as having lawfully started before August 2000. However, both the high court and appeal court rejected that claim.

Dismissing the appeal Lord justice Keene, who was sitting with Lord justice Brooke and Mr justice Bodey, said: 'the appellant cannot be regarded as having established a legitimate expectation that its works carried out on site in breach of conditions would be regarded as a lawful commencement of development under the outline permission for the purpose of sections 56 and 92(2) of the Town and Country Planning Act 1990.'

Nor was there any lawful waiver of conditions, whether generally or to the extent of allowing phased development. Conditions on a planning permission must either be complied with, at least in substance, or if it is sought to vary or discharge them, the mechanism laid down by Parliament in section 73 of the Act, or in appropriate circumstances in section 73A, must be utilised. That was not done in this case'.


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