Reforming the use of planning conditions

One really good piece of news in the Neighbourhood Planning Bill is that ministerial guidance on the use of planning conditions, which has been so widely ignored by local planning authorities for many years, is at last to be given statutory force.

While the Bill is continuing on its passage through parliament (currently awaiting Second Reading in the House of Lords on 17 January, having already completed its passage through the Commons), the government is wasting no time in preparing the subordinate legislation that will be put in place as soon as possible after the Neighbourhood Planning Bill comes into force following Royal Assent, probably in the Spring. The government has consulted on these proposals and has published their response to the consultation with commendable speed.

The first major subject of the consultation is the issue of pre-commencement conditions. Whilst the government recognises the importance and value of certain pre-commencement conditions in ensuring that necessary safeguards are put in place for important matters, including heritage and the natural environment, they remain determined to ensure that the principles in their Planning Practice Guidance (formerly set out in Circular 11/95) are observed by LPAs, and this will include agreeing proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.

The Government remains of the view set out in the consultation paper that it should be the responsibility of the LPA to choose the most appropriate time to seek agreement of the applicant to any pre-commencement conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. Nonetheless, the government agrees that there should be a default period to avoid undue delay in the process where there is no response from the applicant. They therefore propose a default period of 10 working days (although there will be an option for LPAs to agree a longer timescale with the applicant).

The intention is that the default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and has sought the agreement of the applicant. The default period would then elapse 10 working days (two weeks) later, unless a longer period had been agreed between the LPA and the applicant.

The alternative of introducing a dispute resolution procedure (such as a fast-track mechanism for appeals) would only add a further formal step to the process which would be likely to cause delays, and could actually discourage effective discussions between applicants and local authorities, who might simply wait to use the mediation route as an alternative to meaningful engagement early in the process.

The government expects that the new approach will reduce the workloads of authorities following the issue of a planning permission, by reducing the number of pre-commencement conditions that then have to be discharged.

The second main issue dealt with in the consultation document is the proposed prohibition of conditions that infringe the principles laid down in the ministerial guidance on the use of conditions. Planning officers predictably asserted in response to the consultation document that the guidance is already sufficient without further provision being made in legislation, but experience over many years has shown that in practice this guidance is widely ignored. The government believes (and I entirely agree) that it is necessary to ensure that conditions applied by local planning authorities meet the six policy tests in the NPPF. The government has therefore confirmed its intention to do this through secondary legislation, expressly prohibiting each of the following types of condition:

1: Conditions which unreasonably impact on the deliverability of a development - e.g. disproportionate financial burden;
2: Conditions which reserve outline application details [i.e. details that should have been specified as reserved matters at the outline permission stage];
3: Conditions which require the development to be carried out in its entirety;
4: Conditions which duplicate a requirement for compliance with other regulatory requirements - e.g. the Building Regulations;
5: Conditions requiring land to be given up; and
6: Positively worded conditions requiring payment of money or other consideration

The second of these prohibitions will not restrict the ability of local authorities to impose conditions on outline applications requiring the submission of details of reserved matters for approval at a later date. What it is aimed at is conditions attached to a full permission or to consent to details (i.e. the approval of matters that should have been reserved by an outline permission) which require the subsequent approval of further details. The latter type of condition should be entirely unnecessary.

However, what the government’s proposals do not appear to address is the unnecessary requirement in many conditions for certain details to be approved before the commencement of development, when the condition could simply require that certain matters be approved at a later stage in the development; it could indeed to be adequate that the approval of a few matters should simply be required “prior to the first occupation of any part [or of the relevant phase] of the development.

With regard to the prohibition of conditions requiring the completion of a development in its entirety, there is no reason why a developer should be under a legal obligation to carry out the whole of a development that has been approved. LPAs already have the ability to serve completion notices, to encourage the completion of partially-built development. The Government has therefore confirmed its intention to prohibit this type of condition.

As regards conditions that duplicate other regulatory requirements (in particular the Building Regulations), this is an issue on which many of us feel strongly. There is no excuse for trying to drag into the development management process matters that are properly the subject of compliance with the Building Regulations or other legislation. The government, however, does seem to have conceded (inadvisedly, in my view) that a condition might legitimately impose a requirement over and above the minimum standards stipulated by the Building Regulations. The answer, surely, if there are circumstances where a higher standard of construction is required, is to vary the Building Regulations themselves. There has been an unfortunate tendency in recent years to attempt to regulate through the planning system matters that should not properly feature in the development control process. The government really ought to set its face firmly against this trend.

Responses to the consultation exercise included a number of other conditions which it was suggested should be prohibited. These included:

- Conditions which duplicate or split conditions across different regulatory regimes;
- Conditions which restrict hours/methods of working on a building site;
- Conditions which require a completion date;
- Conditions which require material samples to be agreed up front before development can commence;
- Conditions which require pre-approved drawings to be duplicated and re-submitted for approval; and
- Conditions attached to temporary permissions, when the development has a short lifespan.

Some of these suggested prohibitions fall within the conditions that the government intends to prohibit in regulations, including conditions added upon the approval of reserved matters, conditions that duplicate other regimes and conditions requiring a completion date, all of which are covered by the government’s proposed prohibitions mentioned above.

There is perhaps just one other type of condition that requires specific prohibition. This relates to conditions attached to a prior approval under a relevant part of the Second Schedule to the GPDO (particularly Part 3) if it purports to deal with issues that go outside the scope of the specific matters requiring approval under the relevant Class of permitted development. Section 100ZA (which will be added to the 1990 Act by the Neighbourhood Planning Bill) makes it clear that the permissions referred to include development permitted by a development order, and so this provision will include conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended accordingly. However, the subordinate legislation ought specifically to prohibit such conditions, in order to reinforce the provision in paragraph W(13) in the GPDO that the conditions must be “reasonably related to the subject matter of the prior approval”.

© MARTIN H GOODALL