Planning Conditions and Obligations and the Community Infrastructure Levy
| Author | William Webster/Robert Weatherley |
| Pages | 447-463 |
PLANNING CONDITIONS
Why are planning conditions imposed?
44.1 Planning guidance on the use of conditions is found in the PPG in the section, ‘Use of Planning Conditions’.
What are the main powers relating to the use of conditions?
44.2 In granting planning permission an LPA is authorised to impose ‘such conditions as they think fit’.
TCPA 1990, ss 70 and 72 (s 72(1)(a) enables an LPA to impose conditions regulating the development or use of land under the control of the applicant even though it is outside the site which is the subject of the application); s 73 (which provides for applications for planning permission to develop land without complying with conditions previously imposed on a planning permission); s 73A (which provides, amongst other things, for retrospective planning applications to be made in respect of development which has been carried out without permission, and for applications for planning permission to authorise development which has been carried out without complying with some planning condition to which it was subject); and Sch 5. Sections 91 and 92 require the imposition of time-limiting conditions on grants of planning permission. Powers to impose conditions are also conferred on the Secretaries of State or their inspectors under ss 77, 79 and 177, and Sch 6. Unless the condition provides otherwise, planning permission runs with 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 compliment or vary the powers contained in the 1990 Act.
448 Restrictions on the Use of Land
▪ necessary;
▪ relevant to planning;
▪ relevant to the development to be permitted; ▪ enforceable;
▪ precise; and
▪ reasonable in all other respects.
44.3 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 PPG in the section, ‘Use of Planning Conditions’.
What approach should be taken to imposing conditions?
44.4 The PPG in the section, ‘Use of Planning Conditions’ states
(a) Conditions which unreasonably impact on the deliverability of a development.
(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.
44.5 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.
44.6 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.
44.7 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.
44.8 Conditions requiring works on land which is not controlled by the applicant, or which requires 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),
44.9 Planning permission should not be granted subject to a positively worded condition which requires the applicant to enter into a planning obligation
450 Restrictions on the Use of Land
planning obligation or other agreement in a timely manner.
44.10 It may be possible to overcome a planning objection to a development proposal equally well by imposing a condition on the planning permission or by entering into a planning obligation. In such cases, the LPA should use a condition rather than seeking to deal with the matter by means of a planning obligation.
44.11 It may be possible to impose a condition to modify plans and other details submitted with an application. If a detail in a proposed development, or the lack of it, is unacceptable in planning terms, the best course of action will be for the...
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