Planning Conditions and Conditions Precedent
Commercial Property Solicitor, Robbie Mather, explains planning conditions and why they are used by local planning authorities.
The Department of Communities and Local Government (DCLG) issued a consultation on improving the use of planning conditions on 7 September 2016. The consultation, which ended on 2 November 2016 sought to “address the urgent need to tackle the inappropriate use of ‘pre-commencement’ conditions” ...by... “introducing a power in the Neighbourhood Planning Bill to ensure that these conditions can only be used with the agreement of the applicant.”
A number of responses to the consultation have now been received including from the Law Society’s Planning and Environmental Law Committee, The British Property Federation and the Planning Officers’ Society. The responses are mixed though a shared theme acknowledges the importance of using ‘proportionate and appropriate’ planning conditions.
But what are planning conditions and do we really need them?
All local planning authorities are entitled to apply planning conditions to a planning approval. However, this must not be a ‘free for all’ to cover every eventuality. There are six tests that conditions must meet: Each condition must be:
- Necessary i.e. without the condition the application would have to be refused
- Relevant to planning i.e. relates to planning objectives and within the scope of the application
- Relevant to the development i.e. fairly and reasonably related to the development to be permitted
- Enforceable i.e. the local planning authority must be able to enforce the condition
- Precise i.e. clear to the all interested parties
- Reasonable i.e. justifiable and proportionate given its context
Local planning authorities must consider each condition against these six tests. If a condition does not meet a test then it cannot be applied. Should a local planning authority apply a condition to an approval which does not meet a test the condition could be successful appealed and an award of costs granted against the Council.
Historically, many local planning authorities have been guilty of applying conditions in an ad-hoc manner without due consideration and proper review. Recently there has been a much greater emphasis from the Government on planning conditions and generally local planning authorities have been tightening up their approach to applying conditions particularly asking the question ‘if it wasn’t for this condition would this application be refused?’ – a high test for any condition.
Interestingly none of six tests are ‘whether or not the applicant agrees to the condition’. To apply a condition on this basis would be contrary to the six tests and therefore challengeable.
Conditions recommended by third parties i.e. statutory consultees must be individually reviewed by the local planning authority and checked against the six tests. They must be specific to the application and not ‘off the peg’ and applied because ‘we always put them on’. The responsibility for each condition lies with the local planning authority. It would not be a defence from a local planning authority to say ‘well that’s what the Highways Authority recommended so we simply applied it’.
It is best practice for a local planning authority to agree proposed conditions with an applicant before a decision is taken, and as early in the planning application process as possible.
We always recommend that prior to a decision being issued you review the planning conditions and make sure you are happy with what is being proposed. If you can supply information to negate the need for a condition then this would always be the best course of action. At the very least it avoids a further application to discharge the condition which will cost both time and money.
Over the past few years there has been much political targeting of conditions that require work to be done before any work starts on a site. These conditions usually begin ‘prior to the commencement of...’ or ‘prior to any work starting on the site...’ These types of conditions are known as conditions precedent.
These conditions are particularly disliked by developers on the basis that they prevent any work starting until the condition is discharged (agreed) with the local planning authority. Most developers, having made it through the planning gauntlet, are reluctant to go back into planning seeking further approval. The issue is usually compounded as this additional step has not been taken into account (especially if there are delays in agreeing the condition) in the overall timeframe for the delivery of a scheme and developments can stall; costing both time and money.
The importance of complying with conditions precedent cannot be overstated. Should a developer fail to discharge these conditions and then start work on the site they risk losing their permission with any work being considered unlawful and potentially subject to enforcement action. Like snakes and ladders many a developer has been sent back to the start of the planning process by ignoring these conditions. Some of these developers have then found that planning policy has since changed and that their proposal is now either unacceptable or will have to be significantly altered.
Planning conditions can be critical to the planning process. When applied correctly they can turn an unacceptable proposal into an approved development. However, when they are poorly applied or simply overlooked in the rush to get started on a site they can result in significant delays.
There is a cloud of uncertainty over the future and use of planning conditions. It would be unrealistic and indeed undesirable to omit them from the planning process as they serve a useful purpose both for applicants and local planning authorities when applied properly. However, when poorly applied or lazily tagged on, especially where they are conditions precedent, they can be counter-productive – leading to delays, costs and frustrations.
Increased scrutiny of planning condition is good for applicants and in this respect we welcome the Government investing time in improving this element of the planning process.
About the author
Robbie is a Partner and head of the Commercial Property team.