Friday, 24 June 2011
I have been ‘off the air’ for a time due to pressure of work recently, in particular a planning inquiry in South Wales in which I appeared for the appellant – very hard work, but I do enjoy it.
We came to that part of the inquiry when there is an informal discussion of conditions, and I caused general consternation by making a passing remark to the effect that, of course, pre-commencement conditions are in practice unenforceable. It was like one of those moments illustrated in Bateman’s cartoons.
I am not talking here about so-called ‘conditions precedent’ (you will be relieved to learn). A condition which is typical of what I had in mind would be something of this sort:
“A scheme shall be submitted to and approved by the Local Planning Authority before any site clearance or development works commence on site to ensure the retention and protection of all existing trees on the site and to ensure that such trees are not damaged in the course of the development. All works subsequently carried out shall be in strict accordance with the approved scheme.”
Pre-commencement conditions of this sort are commonly used throughout the country, and I think it is fair to say that most developers would be happy to comply with them, not least because the retention of trees is likely to enhance the visual appeal of the development and is therefore a selling point. But there is a potential problem, because by their very nature pre-commencement conditions of this sort are not in fact enforceable.
Why do I say this? Well, it is really very simple – the conditions attached to a planning permission only take effect when the planning permission is implemented. If the development is never carried out, then the developer (or landowner) is not liable to comply with any of the conditions attached to that planning permission.
Now, let us suppose that the developer (or anyone else) were to remove the trees, assuming that they are not protected by a TPO and are not located within a Conservation Area, at some time after the planning permission containing a condition like the one quoted above was issued, but before any other work had been carried out on site. Removal of trees or bushes, etc. cannot amount to ‘development’ (within the definition in Section 55), unless the work involved in site clearance could be said to amount to ‘engineering operations’ or even, conceivably ‘other’ operations, which would seem unlikely in most cases. In any event, I would not regard this sort of activity as coming within the definition of a material operation under Section 56. So at the time when this clearance work is carried out, the planning permission has not been implemented, and even this work, whilst it might well be preparatory to the implementation of the planning permission, would not amount to the commencement of development. So at that point in time, the conditions in the planning permission will not have come into effect and they cannot be enforced.
Where the LPA requires something positive to be done before the commencement of development (such as the submission and approval of additional details over and above the approval of the usual reserved matters), the obvious and most effective means of ensuring this is by means of a negatively worded ‘Grampian’ condition which is so worded as to operate as a ‘condition precedent’. But that type of condition would not be effective to prevent something else being done before the commencement of development, such as the removal of trees.
Unless someone else can come up with a practical suggestion, I am unable to envisage a legally effective device for preserving the trees on site (other than by means of a TPO) or of preventing any other things being done which do not in themselves amount to development but which the LPA wants to avoid prior to the commencement of development.
© MARTIN H GOODALL