A best practice guide to writing sound conditions
What does the NPPF say?
Test 1 Necessary
Ask yourself the following questions:
Test 2 Relevant to Planning
You can’t put in a condition that is governed solely by other legislation e.g. Highways Act (S278 and S32s); Environmental Health, Countryside and Wildlife Act, Building Act etc
However, there are various cross-over planning issues that could be included in a condition. Examples:
• Noise and odours are covered by Environmental Health legislation and are also material Planning considerations
Test 3 Relevant to the development permitted
Test 4 Enforceable
It must be reasonable that a condition can actually be enforced by the LPA either by it being aware when it is not being implemented or by avoiding it being too vague for the LPA to know when it is being implemented. Examples:
Test 5 Precise
The condition must be precise in what it is asking an applicant to do to comply with the condition.
Checklist: Be specific with details wherever possible; specify a trigger point; refer to an approved document wherever possible; always refer to a national or local policy and other guidance where possible; always give a reason; specify how long it needs to be there; always justify pre-commencements.
Test 6 Reasonable in all other respects
Ensure that the condition makes sense and is fair on the applicant and others who will need to comply with the condition. Example:
It would be unreasonable to specifically exclude an individual on the basis of gender, age, ethnicity or ability as it would fail under the Equality Act. However in some specific cases an application would only be acceptable if occupied by individuals that fall within a particular group, for example purpose built older persons housing, adapted housing for a particular disability or to meet a particular cultural need.
Pre-commencement conditions MUST be agreed by the applicant prior to a decision being made.
They must be justified as a pre-commencement – as opposed to later in the development process.
Effectively consent is not given until pre-commencement conditions are discharged.
Genuine pre-commencement conditions include:
The following are questionable pre-commencement conditions
Alternatives to a pre-commencement condition
Pre-damp proof course level – i.e. after foundations have been completed so the developer can start groundworks.
Pre-completion of X storeys – this allows the developer to progress with the development and get investor interest but still ensure they do not get too far down the development path before a condition is discharged.
Pre-occupation – this will ensure no one can move in before the condition is discharged. The developer is committed at this stage and will be very keen to discharge the condition
Pre-occupation of x units – this allows the developer to get a return on their investment but not enough to forget about the condition
Avoid the 'tailpiece'
What is a tailpiece? It is when the condition ends in wording such as “…. unless otherwise agreed by the LPA”
Objectors dislike it because it gives the applicant too much leeway on what they can do without applying for a formal amendment and therefore creates Planning uncertainty. For the same reason, developers are very keen on it!
It can be seen as undemocratic because it means that changes can be made without proper public / Member scrutiny.
It weakens the LPA’s negotiating position because an applicant could assume that the LPA will be willing to make amendments.
Material and non material amendments
Material amendment (S73) – this adds, deletes, or amends a condition(s) from an existing planning permission. It creates a new planning permission and has the same timeframes as the original planning permission.
Non-material amendment (S96a) – this allows an amendment to be made to an existing planning permission but does not materially change the existing consent. No publicity is needed and the timeframes are at the discretion of the LPA. It is good practice for an LPA to be clear about the criteria it uses to assess whether a change is material or non-material.
Discharging a condition
An applicant has to formally ask the LPA to discharge a condition where this is required and there is a charge.
An applicant can give notice to the LPA to make a decision on a condition discharge (deemed discharge) after 6 weeks unless there are particular sensitivities e.g. biodiversity issues.
There is no set format for a “decision” but it needs to be clear that the condition has either been discharged in full, in part, or not discharged.
An informative allows the LPA to say anything else that the applicant needs to know. It doesn’t need to meet the 6 condition tests of a condition but also is not enforceable through Planning legislation. Examples:
- Remind the applicant of obligations under the Countryside and Wildlife Act
- Remind the applicant that they will need to apply under the Party Wall Act
- State that the new dwelling will not be given a parking permit due to another Council decision
- Point the applicant in the right direction for more information
- Remind the applicant about Permitted Development issues
- Remind the applicant of the Council’s code of construction