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.

© MARTIN H GOODALL