This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Friday, 24 June 2011
Pre-commencement conditions
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
But what if the condition is worded "Prior to the commencement of development ..." or "No development shall take place until..."
ReplyDelete“... A scheme shall be submitted to and approved by the Local Planning Authority that demonstrates etc etc.... before any site clearance or development works commence on site.
The reasons for the condition is "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.”
Regrettably, I don’t think that Rick’s suggestion would actually prevent removal of the trees in the interim prior to the commencement of development. One still has the problem that until or unless the planning permission is actually implemented, the condition is of no effect.
ReplyDeletePerhaps Martin (in addition to posing the conundrum) you could suggest an appropriately worded legally binding condition that achieves the intended purpose? ... in this case to protect trees and/or boundary hedgerow features
ReplyDeleteQuite apart from the fancy two step legal argument for and against conditions precedent or precedent conditions (!?), the intent of a reasonable and necessary planning condition such as this is otherwise quite clear to the ordinary fellow.
(Thank you for your very interesting and highly informative blog).
I hope to post a further article on this topic later today, but the short answer to Rick’s suggestion is that I am entirely unable to come up with a condition which would be effective to prevent anything being done on site prior to the implementation of the planning permission but which falls short of commencement of the development authorised by the permission. This, as I explained in my original post, is due to the fact that the condition itself will not take effect until the commencement of development.
ReplyDeleteI regularly enter debate with LA Planners over this type of condition.
ReplyDeleteWhat they appear not to grasp (along with many things) is that the pp authorises a particular development, not any development.
Frankly the level of ignorance is occasionally disturbing. I agree with Rick by the way that this is a very interesting blog and only wish that perhaps some LA's might let their DM officers read it on a regular basis.
Well said thetownplanner, perhaps you could construct an appropriately worded legally binding enforceable planning condition along the lines of this thread - perhaps not? perhaps such a condition cannot be so composed?
ReplyDeleteIf not, let's get to the nub of the matter and design a solution to protect trees and boundary features as planners attempt to do - perhaps the answer is to slap a TPO on every such permission? is that reasonable?
Or should the TPO only be used to protect a tree for the tree's sake rather than the arguable whim of the over cautious over zealous planning officer, after all there is the opportunity for the hapless applicant to appeal against any unreasonable and unnecessary planning condition isn't there? and of course they will need an expert consultant to represent their case won't they?
Sadly I agree with thetownplanners comments though. Although in the this enthralling thread (and not being a planner myself) I'm trying to tease out a solution, rather than endless debate.
I do work for an LPA and I'm saddened, but not supprised by thetownplanner's comments. I'm usually apalled by the either ignorance or feigned ignorance of developers when it comes to complying with conditions.
ReplyDeleteI too lack an appropriate wording for such a condition, I suppose a legal agreement could be entered into, but that raises its own issues. If anyone does find a decent wording I'd love to see it, then maybe we could have less developers 'accidentally' driving JCBs into trees on site which they find inconvenient.
I agree that such a tree protection condition is weak but it seems to me that tree/hedge protection is actually dealt with through the conditionally approved scheme drawings (which need to show existing trees and hedges retained or removed) and/or the usual detailed landscape design condition. Because the PP refers to a particular development, if that scheme drawing or detailed landscaping drawing shows a tree retained then it must feature in the completed scheme. If it has been removed then the development is, in theory, unlawful. In fact, bearing in mind that an existing feature such as a tree cannot be 'suggested' in a drawing, it should be easier to enforce the retention (or penalise removal) more easily than, say, increasing the height of a proposed building where the exact height is rarely explicitly stated.
ReplyDeleteWhilst I can understand the theoretical argument that Boyd McAfee puts forward, I am not sure that it would actually work like that in practice. In quite a few cases, the approved drawings may not show the retained trees. They may be shown on other drawings, but those are unlikely to be treated as part of the planning permission, even in light of the Court of Appeal decision in Barnett. In any event, I think an LPA would have an uphill struggle in convincing an Inspector, or the High Court, that because the trees which were shown on the approved drawings as being retained had in fact been removed, the built development was not the development authorised by the planning permission, so that the entire development was in fact unlawful.
ReplyDeleteA Council has granted planning consent for a replacement dwelling in the Green Belt, subject to a condition which states that the permission will be void, if any buildings are constructed within the residential curtilage before the permitted development takes place. There is a further condition removing Class E permitted development rights for buildings ancillary to the enjoyment of the dwelling house. Before this, the Council had approved a Lawful Development Certificate for a swimming pool building in the garden, and building work has not yet begun on either this or the replacement dwelling.
ReplyDeleteFrom the blog comments above, I presume that the swimming pool building could be constructed now, as the condition removing permitted development rights has not yet come into force. This is because the conditions relating to the planning permission for the replacement dwelling do not come into effect until that permission is implemented. The condition seeking to make the permission void would therefore be ultra vires. Do you agree with this view? Is there any legislation I can quote to the Council to prove the point?
The condition that my anonymous correspondent describes appears to be a brave attempt by the LPA to overcome the problem identified in this blog post, but I am sceptical as to whether it will prove effective. However, it would require careful consideration of all the facts before one could reach a definite conclusion on the point.
ReplyDeleteI have not had time to consider the issue with regard to the swimming pool.
Martin,
ReplyDeleteYou've not mentioned so-called 'Grampian conditions' since this blog post back in 2011 - when they seemed to be a (fairly) new alternative to s106 agreements, or precursors to s106 agreements.
I wasn't much familiar with them then, and I'm not now - has much changed in their usage since then?
Grampian conditions have been around for quite a long time. This type of condition is used where it would not be lawful to frame a requirement in positive terms in a condition, or where such a condition would not be enforceable.
ReplyDeleteThe case from which this type of condition takes its name established that if a condition is worded in negative terms, the same purpose may be achieved. The condition is one that is usually phrased in terms that development shall not take place until or unless specified action has occurred or until or unless some other situation obtains. This effectively ensures that the developer must take the pre-requisite action or secure the pre-requisite situation in order to be able to go ahead with the development, but it does so without requiring in terms that this is what the developer must do. So it gets round the legal difficulty that would be created by a positively worded condition.
Thank you (belatedly) for your clarification of my previous comment on this post. I'm now reading up on "material operations"... Given the precedent of Malvern Hills DC v SSfE, where staking out some 2" x 2' pegs for a road was enough to secure the permission for the development of 25 houses, I'm puzzled by your view that removal of trees wouldn't suffice. Does the difference hinge on the fact that the trees might be being removed for some purpose other than to enable the consented development?
ReplyDeleteThe point is that the operation in question has to be referable to the planning permission. If the alleged operation was something that required planning permission, and was therefore part of the consented scheme, then this would satisfy section 56(2). Clearing trees, on the other hand, does not require planning permission (although it may in some circumstances require some other form of consent), and so it is not in my view ‘referable’ to the planning permission, because it could be carried out at any time without reference to the PP. I appreciate that removal of trees might well be necessary in some cases (for example, to clear an access into the site) to enable a planning permission to be implemented, but I think the general view would be that this is no more than a preparatory action, and that it does not constitute part of the development that is actually authorised by the PP.
DeleteSo, if some trees were to be removed, and no further action were to be taken, I doubt whether this would be accepted as a material operation for the purposes of section 56(2). However, if anyone is aware of an example of an inspector or a court accepting that the mere removal of trees (and no more) was sufficient to implement a planning permission, I would be interested to know.
Going back to the original point, the removal of trees ahead of any other work being carried out would not be a breach of a condition simply requiring the retention of trees (or of identified trees not covered by a TPO), because the conditions in a PP have no effect until or unless the PP is actually implemented. Nor in my view could a simple tree retention condition have retrospective effect, after the PP is implemented, in respect of anything done before development under the PP was actually commenced with the carrying out of a material operation.
Delete