Planning Conditions and Obligations and the Community Infrastructure Levy

AuthorWilliam Webster/Robert Weatherley
Chapter 44

Planning Conditions and Obligations and the Community Infrastructure Levy


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’.1It is made plain that planning conditions are imposed to enhance development where it would otherwise have been necessary to refuse permission by mitigating the adverse effects of the development. It is said that the objectives of planning are best served when the power to attach conditions to a planning permission is exercised in a way that is clearly seen to be fair, reasonable and practicable. It is also important to ensure that conditions are tailored to tackle specific problems, as opposed to being standardised or used to impose broad and unnecessary controls.

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’.2Government policy on the use of conditions is found in paragraphs 203 and 206 of the NPPF 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:

1PPG, reference 21a-001-20140306 to 21a-034-20140306.

2TCPA 1990, s 70(1)(a). The principal powers for the imposition of conditions can be found in

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’.3For instance, in relation to the test of whether the condition is relevant to the development to be permitted, the key issues are these: (a) 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 (b) a condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development.

What approach should be taken to imposing conditions?

44.4 The PPG in the section, ‘Use of Planning Conditions’ states4that conditions should also not be used in the following circumstances:

(a) Conditions which unreasonably impact on the deliverability of a development.
(b) Conditions reserving outline application details.5

(c) Conditions requiring the development to be carried out in its entirety.6

(d) Conditions requiring compliance with other regulatory requirements (e.g. Building Regulations, Environmental Protection Act 1990).7

(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

3PPG, reference 21a-004-20140306.

4PPG, reference 21a-005-20140306.

5Where details have been submitted as part of an outline planning application, they must be treated by the LPA as forming part of the development for which the application is being made. Conditions cannot be used to reserve these details for subsequent approval. The exception is where the applicant has made it clear that the details have been submitted for illustrative purposes only.

6Such a condition will fail the test of necessity by requiring more than is needed to deal with the problem they are designed to solve. Such a condition is also likely to be difficult to enforce due to the range of external factors that can influence a decision whether or not to carry out and complete a development.

7Conditions requiring compliance with other regulatory regimes will not meet the test of necessity and may not be relevant to planning.

8Although it may be possible to use a negatively worded condition to prohibit development authorised by a planning condition until a specified action has been taken (e.g. the entering into of a planning obligation requiring the payment of a financial contribution towards the provision of supporting infrastructure).

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.9

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.10

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.11

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),12namely prohibiting development authorised by the planning permission or other aspects linked to the planning permission (e.g. the occupation of premises) until a specified action has been taken, such as the provision of supporting infrastructure. Such conditions should not be used where there are no prospects at all of the action in question being performed within the time limit imposed by the permission.13

44.9 Planning permission should not be granted subject to a positively worded condition which requires the applicant to enter into a planning obligation14or an agreement under other powers. Such a condition is unlikely to be enforceable. A negatively worded condition limiting the development which can take place until a planning obligation or other agreement has been entered into is also unlikely to be appropriate in the majority of cases. The sensible course is for the LPA to ensure that any planning obligation is entered into before granting planning permission. The advantage of this is that it encourages the parties to finalise the

9See PPG, reference 21a-006-20140306.

10See PPG, reference 21a-007-20140306.

11See PPG, reference 21a-008-20140306.

12The principle of a negative condition was approved by the HL in Grampian Regional Council v City of Aberdeen District Council (1983) 47 P & CR 633, where planning permission for industrial development was granted subject to a condition that the developer was not to proceed until a nearby road had been closed. Indeed, TCPA 1990, s 72 specifically authorises the imposition of a condition affecting other land under the control of the applicant.

13See PPG, reference 21a-009-20140306.

14TCPA 1990, s 106.

450 Restrictions on the Use of Land

planning obligation or other agreement in a timely manner.15It may, however, be necessary, in exceptional circumstances, for a negatively worded condition requiring a planning obligation to be entered into before certain development can commence, such as in the case of complex and strategically important development where there is evidence that the delivery of the development would otherwise be at serious risk, although in such cases the six tests should still be met.16

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.17

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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