Effective use of conditions

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

Para 55 – 6 tests:

• Necessary
• Relevant to planning
• Relevant to the development permitted
• Enforceable
• Precise
• Reasonable in all other respects

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

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?  

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

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

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:

• It may be reasonable to say that a parking space can’t be used by an SUV car due to its space requirements, but can you 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 stop it being used by more than one individual? 
• Conditions relating to a personal consent are often supported by Members but are usually very difficult to enforce e.g. a requirement for a workshop only to be used by Mr Smith because he has a good reputation for being considerate to neighbours.

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.

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:

• Construction management
• Archaeological investigation 
• Ecological safeguarding works

The following are questionable pre-commencement conditions:

• Need to agree to materials – why can’t you do that after development has commenced?
• Need to agree on 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 on parking layout details – the main consideration at commencement is that the parking is achievable which should have been agreed upon before the decision. The actual details of each parking bay can usually wait until after commencement.

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.

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 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.

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