Effective use of conditions

What does the NPPF say?

Para 54 – use conditions where “otherwise unacceptable development could be made acceptable through the use of conditions”

Para 55 – 6 tests:

1.Necessary

2.Relevant to planning

3.Relevant to the development permitted

4.Enforceable

5.Precise

6.Reasonable in all other respects

Para 55 – avoid pre commencement conditions unless there is clear justification

Test 1 Necessary

Ask yourself the following questions:

Would the development really be unacceptable if the condition was not there?

Is the condition simply reiterating something that has already been agreed? If so why have a condition? e.g. referring to an agreed plan, survey etc.

Is it a bit over cautious? Example: Is a contamination survey really necessary for a householder application or a change of use? Sometimes a common sense approach may be needed particularly for smaller developments.

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 covered Environmental Health legislation and also material Planning consideration

• It is illegal under the Wildlife and Countryside Act to harm protected species and it is also a material Planning consideration

Test 3 Relevant to the development permitted

Does it form part of the application area? A valid condition is only relevant to the “red line” of development unless it is a Grampian condition. Generally speaking if it is outside the red line it needs to form part of a S106.

It must be reasonably related to the development consented. Examples:

• Not reasonable to insist on a play area condition for elderly supported living even if there is a need in the community.

• Not reasonable to require the replacement of a wall in a back garden if the application is for a front porch even if the applicant has agreed to do this to appease the neighbours.

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 avoiding it being too vague for the LPA to know when it is being implemented. Examples:

• It may be reasonable to say that a parking space can’t be used by an SUV car due to space but can you really enforce the type of vehicle parking in a space?

• Space standards may dictate that a room can only be used by a single person but can you really stop it being used by more than 1 individual?

• Conditions relating to a personal consent are often supported by Members but usually very difficult to enforce e.g. workshop only to be used by Mr Smith because he has a good reputation for being considerate to neighbours.

Test 5 Precise

The condition must be precise in what it is asking an applicant to do to comply with the condition.

Bad condition: A wall must be erected between the two properties to avoid overlooking

Good condition: The wall as outlined in plan X (marked as XXX) must be erected prior to first occupation and be retained in perpetuity at a height of at least 2 metres. Details of materials to be agreed in writing with the LPA prior to the construction of the wall. Reason: To avoid the overlooking of residents at XXX in compliance with policy XX of the Local Plan and paragraph XX of the SPD.

Checklist: be specific with details wherever possible; specify a trigger point; refer to an approve document wherever possible; always refer to a national or local policy and other guidance where possible; always give a reason; specify how long does it need 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

Pre-commencement conditions MUST be agreed by the applicant prior to 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 discharged.

Genuine pre commencement conditions include:

• Construction management

• Archaeological investigation

• Ecological safeguarding works

The following are questionable pre commencement conditions

• Need to agree materials – why can’t you do that after development has commenced?

• Need to agree landscape details – it depends on what the condition says – would the ability to implement an effective landscaping scheme be compromised if it was post commencement?

• Need to agree parking layout details – the main consideration at commencement is that the parking is achievable which should have been agreed before decision. The actual details of each parking bay can usually wait until after commencement.

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 by this stage and will be very keen to discharge the condition

Pre occupation of x units – this allows the developer to get a return in 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.

There is no appeal against a “not discharged” decision.

Informatives

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