Friday, 8 August 2014

Proposed changes in the use of planning conditions

The government’s recent consultation paper (“Technical Consultation on Planning”) contains a number of ideas for modifying planning procedures. They include, among other things, proposals relating to the use of planning conditions.

It is widely recognised that there has long been a tendency on the part of LPAs to impose too many conditions on permissions, and to be far too prescriptive in their approach. The oft-repeated six tests of legality are often overlooked and ministerial advice, formerly set out in Circular 11/95 and now to be found in the government’s on-line planning practice guidance is widely ignored. Many planning officers have never even read 11/95 and are entirely unaware of what it said.

The consultation paper expresses particular concern about the number of conditions imposed on full planning permissions that require the submission of various additional details for approval, so that developers are required to jump through yet more hoops to get the development fully approved. Another cause for concern is the increasing use of pre-commencement conditions (‘conditions precedent’) forbidding the commencement of development until the condition has been formally discharged by the LPA. Many of these details, if they really do require to be ‘signed off’ by the LPA, do not really need to be approved before a start is made on site.

In practice, the courts have long since recognised that the commencement of development before pre-commencement conditions are discharged is entirely lawful, provided the condition is not one that “goes to the heart of the permission”. There are nonetheless far too many instances of LPAs claiming that the commencement of development is unlawful in these circumstances, with resulting uncertainty and anxiety for the developers.

Another issue is the time it takes to get such conditions discharged, once the further details have been submitted to the LPA. The government makes the point that this can lead to substantial and unacceptable delays and costs at a stage in the development process where applicants are often close to starting on site or where the development is underway. Such delays can have severe practical implications for applicants – potentially impacting on the availability of finance, the sequencing of development, or resulting in unnecessary and costly down time where work on site could otherwise be proceeding.

This is the background to the proposals (previously announced), which will be inserted in the Deregulation Bill, for the deemed discharge of such conditions where the LPA does not make a decision within 6 weeks. A deemed discharge will mean that where an developer has sought the authority’s consent, agreement or approval to a matter required by the condition, and the LPA has not notified the developer of the decision within 6 weeks, the applicant may regard that matter as having the approval or consent of the LPA.

The only reservation I have about this is the need to ensure that the new provision operates in a straightforward manner, and does not require the developer to jump through further hoops (such as some form of appeal process, even a streamlined one). I do not even see the need for the developer to give a further 2 weeks’ notice to the LPA to discharge the condition following the expiry of the decision period, as is currently proposed. The new rule will not apply to all such conditions, but the categories of excluded or exempted conditions, where deemed approval will not apply, must be kept to a bare minimum.

In tandem with this proposal, the Fees Regulations (which currently provide for a fee refund for confirmation of compliance with conditions after 12 weeks) will be amended to require a refund upon no decision being made within 8 weeks.

Having identified in the consultation paper the well-known problems with planning conditions referred to earlier, De-CLoG’s proposals for tightening up on the use of conditions generally are disappointingly tentative. There is a rather wishy-washy suggestion that LPAs should discuss draft conditions with applicants for major developments before a decision is made. However, whilst De-CLoG recognise that this could also be beneficial in the case of minor developments, they propose to make it mandatory only for major developments. It is suggested that this should happen not less than 10 working days (or even 5) before the determination of the application, but it really needs to be done earlier than this if the applicant is to be given any meaningful input into the formulation of the conditions.

This does not tackle the fundamental problem of inappropriate or unnecessary conditions being imposed on a permission by the LPA. The rules and guidance on the use of conditions need to be given real statutory teeth. Appealing a condition under section 78 is never a satisfactory solution (as it theoretically puts the entire planning permission in jeopardy). An application under section 73, followed by an appeal against the LPA’s refusal to remove or relax the offending condition is the only practical way forward, which adds extra expense and delay for the developer, although it is usually effective because the Planning Inspectorate takes a robust approach to unnecessary of unwarranted conditions. What is really needed, however, is an automatic disqualification of conditions which fail to meet clearly defined statutory criteria, so that they would be deemed void without need of any application or appeal, and would be automatically severed from the permission so as not to jeopardise the permission as a whole. This would involve some very careful legislative drafting, but it is not beyond the abilities of skilled planning lawyers to achieve.

De-CLoG does propose to tackle unwarranted pre-commencement conditions, to ensure that they are used only where there is a genuine and justifiable reason to prevent any development until the matter covered by the condition has been addressed. Many of the matters covered by pre-commencement conditions could be dealt with at a later stage in the development process, rather than before construction starts. The proposal is to add an extra requirement in the Development Management Procedure Order, requiring a written justification from the LPA as to why it is necessary for that particular matter to be dealt with before development starts. This requirement will be in addition to the general justification that local planning authorities are already required to provide for using conditions.

I very much doubt that this will prevent the inappropriate imposition of ‘conditions precedent’ in future. It would be all too easy for LPAs to adopt a standard form of words in such cases, referring to “the need to ensure good planning and to secure an acceptable form of development” or some such meaningless rubric. What is needed is a legislative provision that gives effect to the judgments in Whitley & Sons, Hart Aggregates and similar cases, so that a condition requiring compliance prior to the commencement of development does not in fact prevent the implementation of the permission before compliance, unless the condition “goes to the heart of the permission”. That is already the law; it is simply a question of codifying it, so as to eliminate any uncertainty in particular cases.

I will discuss the proposals for changes to the planning application process in a future post.



  1. I have to say the tone of this post assumes that all developers come to the table fully prepared.

    In my experience, the only way LPAs can approve applications within the statutory time limits given the haphazard applications received and the political pressure applicants are well versed in applying, is through use of pre commencement conditions.

    I do however agree that it is not an ideal scenario. Perhaps a more balanced approach would be to strengthen the ability to reject clearly inadequate proposals (rather than the "validation appeal" power which swings things back in the developers favour again) and formulate a quicker, simpler injunction procedure for those applicants who simply ignore genuine pre commencement conditions.

    It is by no means a one way blame game.

  2. Recently in an Appeal, an LPA asked the Inspector, if allowing the Appeal and granting permission, to impose a condition requiring the developer to submit samples of all "materials to be used in the construction of the external surfaces," and obtain its approval before starting. Many such details were of course shown on the drawings anyway, eg "to match existing." I submitted to the Inspector that the LPA should not have a second bite of the cherry, and I think especially so given its opposition to the development in principle. Also does their Receptionist have the ability to receive samples of stone, slate, lime etc.? I'd like someone to say if people really do deliver these kind of samples to Planning Departments!

  3. Martin - for clarification - the oft-repeated six tests are not of legality but policy tests.

  4. Four of the tests are definitely legal tests, as laid down by the Courts. The tests of ‘necessity’ and ‘enforceability’, however, are ministerially applied tests. Nevertheless it is firm ministerial policy that all six tests must be satisfied, failing which they are liable to be struck down. In some cases, this may raise difficulties as to their severability. If a condition that is held not to meet one or more of the six tests is not in fact severable, it will take down the permission with it.

  5. In answer to EMB (10/8/14) - Approval of materials is very frequently required by condition, even when it is not really necessary. LPAs certainly do receive numerous samples of bricks, tiles and other materials, and they often lie around in the office cluttering up planning officers’ working space! Such samples are often delivered to Planning reception by hand, rather than through the post – which would be too expensive. I see no difficulty with this, provided the samples are clearly labelled with the application number.

  6. I used to work for and LPA and our policy was to not accept samples of materials at the office (as Martin says, they often end up cluttering up the work space!) but to pop out to site to see them. This worked well and allowed one to judge the appropriateness of the samples to their context. Especially important in conservation areas and for listed buildings.

  7. Many applicants wish to provide minimum level of information at applications stage as a refusal is possible and they want to minimise costs prior to receiving a decision. IF permission is granted, LPAs often have to apply many conditions to secure the level of information required to secure an acceptable development. This works for the developers as they do not have to expend the full cost of preparing all details until they have certainty that permission is granted. This approach seems reasonable.

    If we assume that some of the information LPAs require is necessary, then it either needs to be provided at application stage or secured by condition. If we move away from conditions then it will have to be supplied at application stage, which may be wasted expenditure if permission is refused. If LPAs do not have a remit to apply conditions they could end up refusing applications due to insufficient information being submitted.

    In regard to per-commencement conditions, is it really unreasonable to suggest that the details of a development are finalised before works commence? In my experience it is much more complicated and heated to try to agree details during a construction phase when timescales are tight.

    Conditions are hugely time consuming for LPA's to deal with. An application for the approval of details required by condition, with a nominal fee, can take much longer than the original planning application. LPAs do not get an easier ride by applying conditions!

    So just to be clear, the current system benefits developers who wish to delay the costs of providing full information until they can be sure permission is granted. These same developers can forget this at conditions stage when the burden of the conditions is blamed upon the LPA. Applicants have the power to minimise per-commencement conditions; just establish what will be required and submit it at application stage. Most LPAs apply requirements reasonably consistently and conditions to be applied are normally easy to predict.

    The streamlined system would be-

    1. Submit full information with the application.
    2. Any conditions applied would then most likely be pre-occupation or regulatory.
    3. Receive permission, crack on with the build, submit information as required during / after construction.

    No need for regulatory change, applicants just need to submit full information at application stage, or accept and acknowledge that their own strategy relies upon delaying as much costs as possible until conditions stage, and when they get to that point remember that their choice to not submit the information earlier has required the application of conditions. It's not rocket science, it's within the applicant's control.

  8. I’ve just received a planning permission with a fairly standard set of conditions attached.

    The ‘Conditions Precedent’ or ‘pre-start’ conditions, require the approval of details of ‘external facing materials’ and hard & soft landscaping.

    In this instance, short of planting Giant Hogweed or mature Sequoia, and cladding the elevation in asbestos tile, I doubt that there’s anything that we could submit that wouldn’t meet with Local Authority approval, which makes me wonder if this isn’t really just an exercise in extracting a bit more cash for the Christmas booze-up.