Sarah Youren Planning Solicitors

The Department for Communities and Local Government is consulting on proposals to improve conditions attached to planning permissions. The consultation paper was issued in December 2009 and responses must be received by 19 March 2010. The consultation has arisen in response to a recommendation in the Killian Pretty Review that the Government should improve the approach to planning conditions to ensure that conditions are only imposed when they are justified and to ensure that the process for discharging conditions is made clearer and fairer.

Why do we need to change the current system?

The Killian Pretty Review identified the discharge of planning conditions on a planning permission as being one of the most problematic stages in the planning application process. They found evidence of the following issues:

• that there is inconsistency in the scope and use of conditions amongst different local planning authorities;
• there is no clear system for discharging conditions or recording actions taken; and
• there are an average of eight pre-commencement conditions attached to each planning permission and sometimes there can be far more for more complex development schemes.

There is also a perception that more conditions are now being attached to planning permissions, perhaps unnecessarily. There are a number of reasons why this may be happening including the following:

• a lack of engagement at the pre-application stage;
• pressure on local authorities to issue decisions quickly because of the time targets regime which is resulting in insufficient time to resolve issues arising during the application process and the local authority therefore having to address them by way of condition instead;
• applicants may prefer to leave matters of detail until after the principle of development has been agreed by the issue of the planning permission;
• local planning authorities may take a belt and braces approach to the use of conditions including everything that may possibly be relevant rather than risk missing out any important details;
• the increasing complexity and inclusive nature of the planning process; and
• statutory consultees and local authority in-house experts routinely request specialist conditions.

The difficulty with imposing numerous conditions on a planning permission where they are not in fact needed is that it places an unnecessary strain on the resources of both the developer and the local planning authority in then having to discharge those obligations. It also leads to unnecessary delays to the start of a development.

Proposals for imposition of conditions

(1) Replace Circular 11/95

Current policy on the use of planning conditions is set out in Circular 11/95. Part 2 of the consultation paper contains a draft replacement policy. The new policy covers four important areas.

Firstly, the new policy retains the existing six tests for planning conditions as follows. Conditions must be

1. Necessary;
2. Relevant to planning;
3. Relevant to the development to be permitted;
4. Enforceable;
5. Precise; and
6. Reasonable in all other respects.

Secondly, the new policy strongly reminds local planning authorities that when they wish to impose conditions on a planning permission they must assess the conditions that they wish to use against the six tests above. A condition can only be imposed on a planning permission if it meets all six tests. This should help to avoid the imposition of unnecessary or overly onerous conditions.

Thirdly, the new policy clearly states the need for local authorities to avoid using certain types of planning condition. Conditions which should not be imposed include ones which:

• do not meet the six policy tests;
• reserve outline application details where the application submitted shows some of those details and does not state that they are for illustrative purposes only and are not formally part of the application;
• require the completion of the whole of the development;
• require land to be given to other parties such as the Highway Authority;
• would unnecessarily delay the commencement of development; or
• require a payment or other type of consideration in exchange for the grant of planning permission.

Finally, the new policy reminds local planning authorities to be careful about imposing certain types of planning condition, for example, one that removes permitted development rights. This reflects the Killian Pretty recommendation that permitted development rights for new development ought not to be restricted other than in exceptional circumstances. This recommendation arose as a direct result of concerns raised by a number of bodies representing applicants for planning permission that they believed that, in recent years, there had been an increase in the number of planning permissions granted which contained conditions either limiting or withdrawing permitted development rights for new development.

This is contrary to the approach by the Government to try and widen permitted development rights to ensure that planning permission only has to be sought where there is a real impact caused by the proposed development which ought to be regulated. The Government has already widened the permitted development rights of householders and is in the process of consulting on the widening of permitted development rights for non-householder applications. These changes will be undermined if local planning authorities then impose conditions on planning permissions, as a matter of course, restricting or removing these permitted development rights in circumstances where this is not justifiable.

(2) Updated list of model planning conditions

DCLG have worked with the Planning Inspectorate to produce an updated list of model conditions. This can be viewed on the Planning Inspectorate website at www.planning-inspectorate.gov.uk and is intended to replace the guidance on model conditions contained in Circular 11/95 and in the supplementary note on model conditions produced by PINS in November 2008.

It also helpfully includes clear examples of where conditions should not be imposed in order to avoid duplication with other statutory controls. This should help to encourage local planning authorities not to use a belt and braces approach to the imposition of planning conditions for fear of not including a detail which is in fact dealt with by a different statutory regime, for example, control of emissions.

(3) Condition to enter into s106 planning agreement

The new policy also presents an opportunity to clarify the Government’s approach to the use of conditions which grant planning permission provided an applicant enters into a s106 planning agreement.

When does this issue arise?

Usually an applicant for planning permission will enter into any necessary s106 planning agreement prior to the planning permission being granted. The s106 planning agreement will usually bind the whole of the application site unless there are parts of the site that do not need to be bound, for example, small areas of the site owned by the highway authority and similar scenarios. The reason for this is to ensure that development cannot be carried out on any part of the application site without that development triggering the relevant obligations in the s106 planning agreement.

However, when an applicant does not own all of the application site at the time of applying for planning permission he cannot bind the parts of the site that he does not own by way of obligations in a s106 planning agreement before the planning permission is granted in the usual way unless the owner of those parts of the application site agrees to be a party to the s106 agreement.

This is a fairly common scenario on major development projects, particularly regeneration schemes, where sites have to be assembled from multiple ownerships. It can also arise on smaller sites where a landowner may wish to ascertain that the principle of development is accepted before acquiring all the necessary land or rights to acquire the necessary land.

Where the local planning authority wants to see a comprehensive development of the whole site, for example, where there is a site wide master plan in place for the application site, the local planning authority will want to see one planning application for the entire site rather than a piecemeal approach. The consultation paper recognises that, particularly during difficult economic times, it is not desirable to make it even harder to deliver important development projects, particularly regeneration schemes, simply because the developer is unable to bind the whole of the application site at the time the application for planning permission is determined.

What are the proposed solutions?

The consultation paper therefore proposes two alternatives. The first option is that conditions should not be imposed which require the subsequent completion of a s106 planning agreement. As discussed above, if this becomes the official policy position this would prevent permission being granted until such time as a developer owns a sufficient interest in the entire application site as to be able to require the whole of the site to be bound by the s106 planning agreement.

Alternatively, the second option is that in very exceptional circumstances it may be acceptable to grant planning permission subject to a condition restricting development from occurring until a planning obligation has been completed. The consultation paper goes on to set out matters which local planning authorities should have regard to in deciding whether such a condition may be appropriate including, whether there is an acknowledged need for comprehensive development and the site is in multiple ownership, whether delivery is at serious risk of delay because genuine attempts to complete the s106 agreement before determination of the planning application have failed through no fault of the applicant and that there are reasonable prospects that this can be rectified prior to commencement of development, that the applicant has a legal interest in at least part of the application site, that there is agreement on the requirement for a planning obligation, a draft planning obligation has been agreed and annexed to the decision notice and the proposed condition meets all of the six criteria tests.

Is this a sensible and appropriate approach?

This whole issue has been approached by the Government in the consultation paper in a very strange manner which does not appear to be appropriate. To begin with, the Government has started from the point that planning permission ought not to be granted subject to a condition which requires a s106 planning agreement to be completed prior to commencement of development. This is the wrong starting point as there is in fact no existing planning policy which prevents such an arrangement from occurring. Indeed many successful developments have been consented in this manner to the mutual satisfaction of both developer and local planning authority enabling acceptable development to proceed.

There is no reason given in the consultation paper as to why the Government believes this type of arrangement should only be allowed in very exceptional circumstances. There is no need to confine it in this manner. Provided the particular circumstances mean that it is appropriate and justifiable for a local planning authority to require a condition of this nature and it meets all six tests for conditions as set out above there is no reason to impose any further restriction. When one starts to impose tests such as “very exceptional circumstances” one then starts down the road of judicial interpretation as to what that test actually means, such as in the case of “very special circumstances” justifying development in the greenbelt and this introduces a level of uncertainty into the process that is unhelpful and unnecessary. The six tests for conditions are quite sufficient in themselves to decide whether such a condition should be imposed or not without introducing yet more tests for this particular type of condition.

Where a developer has control over part of the application site but not all of it, the consultation paper suggests that he should have to enter into a s106 planning agreement to bind the part of the site that he controls and to prohibit him from starting development on any part of the site until such time as he has bound the whole of the application site. That is not a sensible proposition as it leads to a ransom situation where the owner of the part of the site not yet acquired can demand a far higher price for his land knowing that the developer cannot start work on the remainder of the application site until he acquires the whole of it. Such a situation could render the entire project uneconomical thereby preventing any development coming forward at all. Given that a developer is entitled to decide how much of his site to develop out and it is not possible to impose a condition requiring the entire scheme to be built out as one operation, such a proposal is completely against existing planning policy.

This is an extremely important issue and one which if wrongly decided will have serious ramifications for developers and local planning authorities alike when trying to bring forward sites in multiple ownerships for many years to come.

Proposals for discharge of conditions

The Killian Pretty review recommended that the process for the discharge of planning conditions needed to be made faster and clearer. In response the Government engaged White Young Green to identify, test and recommend a range of options to achieve this. The proposed measures are as follows:

• Conditions should be discussed as a key component of the pre-application discussions to try and deal with matters during the application process to avoid the need for them to be addressed by conditions;
• Decision notices should be structured so that the different types of conditions are grouped together such as those that must be discharged before commencement of development, those that must be discharged before occupation and those regulatory conditions that affect the use of the development or require action or monitoring after completion;
• For major applications the draft decision notice should be made available 5 working days before determination of the application in order that comments can be made on the draft conditions and the local planning authority must take those comments into account however the final decision on which conditions to impose rests with the local planning authority;
• The time limit for the local planning authority to determine an application made for consent, agreement or approval required by a condition attached to a planning permission should be shortened from 8 weeks to 4 weeks for householder applications and 6 weeks for all other applications and if no response is given within 12 weeks the fee should be refunded;
• A planning services key performance indicator should be introduced to include the use and discharging of conditions to make sure that local authorities are dealing with this appropriately and efficiently;
• A fast track conditions appeal service could be introduced provided by the Planning Inspectorate for appeals against conditions imposed on a planning permission, a refusal to vary conditions imposed on a planning permission or a refusal of an application for an approval, consent or approval required by a condition on a planning permission. It is not proposed that it would apply to reserved matters applications or appeals against non-determination of an application for an approval, consent or approval required by a condition on a planning permission;
• The developer must notify the local planning authority before starting the development so that they can check that the relevant conditions have been discharged;
• The developer should display the decision notice and conditions on the site together with all pre-commencement approvals required by condition to help inform third parties about the approved development before it commences; and
• A default approval for applications made for consent, agreement or approval required by a condition attached to a planning permission. As one might expect this proposal has been strongly supported by groups representing developers but only a quarter of local planning authorities have expressed support so it is not clear whether this will be progressed.

Fees for discharge of planning conditions

The consultation paper clarifies the current position on charging fees for the discharge of planning conditions to ensure that all applicants and local planning authorities are clear about what is allowed and what is not. The fees chargeable are set out in the Fees Regulations 1989 (as amended) and the fee must be paid when the request is made. Essentially, local planning authorities can charge fees for:

• Written confirmation of consent, agreement or approval which is required by a condition attached to a planning permission ie to achieve the discharge of a planning condition; and/or
• Written confirmation that one or more of the conditions imposed on a grant of planning permission have been complied with ie to confirm the discharge of a planning condition.

Conclusions

With the sheer number of consultation papers on planning related matters constantly being issued by DCLG it is easy to become weary of reading and responding but this particular paper is well worth the effort given the impact it will have on each and every planning permission granted once the proposed changes come into effect, as all but the simplest of consents are now made subject to conditions.

The proposals relating to the completion of s106 planning agreements where sites are not wholly under the control of the applicant is of particular concern as the current proposed solutions stray a long way from existing planning policy with no justification given for such a departure and may result in it being impossible for key strategic development to be brought forward no matter how much both the developer and the local planning authority may wish to do so.

This article was first published in the Property Law Journal on 1 February 2010.

This article was posted on Monday, March 1st, 2010 and is filed under Journal Articles.