Planning Conditions
| Author | William Webster |
| Pages | 183-200 |
Chapter 8
Planning Conditions
WHY ARE PLANNING CONDITIONS IMPOSED?
8.1 Planning guidance on the use of conditions is found in the National Planning Practice Guidance (NPPG) in the section, ‘Use of Planning Conditions’.
WHAT ARE THE MAIN POWERS RELATING TO THE USE OF CONDITIONS?
8.2 In granting planning permission local planning authorities (LPAs) are authorised to impose ‘such conditions as they think fit’.
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the use of conditions is to be found in the National Planning Policy Framework 2012 (NPPF) at paragraphs 203 and 206 in the section ‘Decision-taking’. Paragraph 203 states that LPAs ‘should consider whether unacceptable development could be made acceptable through the use of conditions’. Paragraph 206 states that planning conditions ‘should only be imposed where they are necessary, relevant to planning, and to the development to be permitted, enforceable, precise, and reasonable in all other respects’.
8.3 These are the so-called six tests which must all be satisfied each time a decision to grant planning permission subject to conditions is made. These tests are set out alongside what are described as the key questions in the NPPG in the section, ‘Use of Planning Conditions’.
8.4 For instance: (a) in relation to the test of whether the condition is relevant to the development to be permitted, the key considerations are: (i) it is not sufficient that a condition is related to planning objectives: it must also be justified by the nature of the impact of the development permitted; and (ii) a condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development; and (b) in relation to whether a condition is reasonable, the key considerations are: (i) whether the condition place an unjustifiable and disproportionate burden on an applicant; and (ii) an unreasonable condition cannot be used to make development that is unacceptable in planning terms acceptable.
WHAT APPROACH SHOULD BE TAKEN TO IMPOSING CONDITIONS?
8.5 The NPPG in the section, ‘Use of Planning Conditions’, states
(a) conditions which unreasonably impact on the deliverability of a development;
the land, and any conditions imposed on the permission will bind successors in title. In some areas, there may also be powers under local Acts which complement or vary the powers contained in the 1990 Act.
Company Ltd [2017] UKSC 66, the Supreme Court reaffirmed the three-fold test that conditions:
(a) must serve a planning purpose; (b) must be fairly and reasonably related to the development; and (c) must not otherwise be unreasonable in the Wednesbury sense.
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(b) conditions reserving outline application details;
(c) conditions requiring the development to be carried out in its entirety;
(d) conditions requiring compliance with other regulatory requirements (e.g. Building Regulations, Environmental Protection Act 1990);
(e) conditions requiring land to be given up or ceded to other parties, such as the highway authority;
(f) positively worded conditions requiring payment of money or other consideration.
8.6 For non-outline applications, other than where it will clearly assist with the efficient and effective delivery of development, it is important that the LPA limits the use of conditions requiring its approval of further matters after permission has been granted. This may be justified, for instance, in the case of aspects of the development that are not fully described in the application, such as the provision of car parking spaces.
8.7 Conditions which prevent the carrying out of any development authorised by the planning permission until the condition has been complied with should only be used with care and where the LPA is satisfied that the requirements of the condition are so fundamental to the permitted development that it would have been otherwise necessary to refuse the whole permission. Clearly, development carried out without having complied with a condition precedent would be unlawful and may be the subject of enforcement action.
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8.8 Where the circumstances make this necessary and the six tests are met, conditions can be imposed to ensure that a development proceeds in a certain sequence.
8.9 Conditions requiring works on land which is not controlled by the applicant, or which require the consent or authorisation of a third party, often fail the tests of reasonability and enforceability. It may, however, be possible to achieve a similar result using a condition worded in a negative form (known as a Grampian condition),
argue that a decision by the LPA to bring enforcement proceedings would be open to judicial review on grounds of irrationality. See R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) (endorsed in the Court of Appeal in R (Prokopp) v London Underground Ltd [2004] 1 P & CR 31 and (obiter) by Court of Appeal in Norris v First Secretary of State and Stoke on Trent CC [2006] JPL 1574) and R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin), where most of the authorities are reviewed. See also the sequential test advanced in the Encyclopedia of Planning at the end of P56.13.6.
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