Bringing order to planning conditions

Checklist 2 146x219Richard Harwood OBE QC examines the messy state of planning conditions, and calls for the introduction of simplicity to the area.

Planning conditions are often a necessary control, but like many good intentions, have a risk of going too far. I spent most of last week dealing with a planning permission where the decision notice itself is 273 pages long. That was for an exceptional scheme, but consents with dozens or scores of conditions are commonplace.

It is a long established principle of policy, now contained in the National Planning Policy Framework, that planning conditions should only be imposed if they are necessary. Yet the feeling is too often that too many are imposed and require too many details, too early.

A planning consultant criticised the "sheer volume of pre-commencement conditions attached to outline permissions". There are broadly two problems: too many details having to be approved and approvals being required earlier than is necessary, holding up the start of development.

Ministers have already amended the Development Management Procedure Order to require reasons to be given as to why conditions were pre-commencement. The 2016 Budget signalled further action. More measures will be in the Neighbourhood Planning and Infrastructure Bill. The background notes to the Bill in the Queen’s Speech say:

  • To ensure that pre-commencement planning conditions are only imposed by local planning authorities where they are absolutely necessary.
  • Excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission.
  • The new legislation would tackle the overuse, and in some cases, misuse of certain planning conditions, and thereby ensure that development, including new housing, can get underway without unnecessary delay.

A comment in the Daily Telegraph has prompted concern amongst archaeological interests that the use of planning conditions to require archaeological excavations will be curtailed by the Bill. The newspaper article seems to be misplaced. What topics are covered by conditions are matters of policy, not legislation. The National Planning Policy Framework says (at para 141) that local planning authorities should: “require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible.”

That continues the approach introduced by the Planning Policy Guidance Note 16 in 1990, which led to a dramatic increase in archaeological funding by the development industry. Archaeological consultancies owe their existence to PPG16 and the continuation of its principles, as discussed by John Pugh-Smith and the late John Samuels in Archaeology in Law and in my Historic Environment Law. There has been no suggestion from Ministers that the policy on the use of conditions, or in particular archaeological works conditions will change or is under review. Indeed, my sense from practice is that archaeological conditions have not been seen as particularly problematic. Developers are often personally quite interested in what is under their land.

The Bill will seek to grapple with how the planning system should give effect to the long established policy that conditions should only be imposed where they are necessary.

In the absence of publication of the Bill, I do make one suggestion as to what could be done.

It should be made a lot easier to appeal against conditions.

At present an applicant can appeal against the grant of planning permission subject to conditions but this puts the whole of the application back into play. On such an appeal the Inspector could refuse planning permission. Even if that outcome is not likely to happen, third party participants can argue that the scheme should be rejected and the developer will have to answer that challenge. For these reasons a developer who wishes to challenge conditions but will not appeal on that permission, will make a section 73 planning application to the local planning authority seeking the same permission but with different conditions and then appeal against the refusal or non-determination of that application.

The procedure for appeals against the grant of permission subject to conditions is also the same as for the refusal of planning permission.

There is no good reason why an applicant who wishes to appeal against conditions on the permission should be at risk of losing its planning permission or be forced into the expense and delay of a making a section 73 application and appeal. The Town and Country Planning Act 1990 can be amended to provide that when planning permission is granted subject to conditions, the applicant may appeal against the conditions and the Secretary of State and Inspectors on appeal should just consider whether the conditions on the permission should be changed. The developer would be able to proceed with the permission (subject to its original conditions) pending the resolution of the appeal.

Appeals against conditions fall into two types: those which raise substantive issues (for example, whether highway improvements are required, the duration of temporary permissions or limits on opening hours) which may require site visits, evidence beyond the application itself, a hearing or inquiry and third party participation; and those whether the necessity of conditions can be decided on principle and on the application documents. These will include whether details are required to be approved pre-commencement or at a later time and could be dealt with by a simple written procedure.

A new simplified procedure could be established for appeals against conditions. As with the householder appeals regime, an inspector could consider just the material produced in the planning application process (including the council report and third party comments) along with the appellant’s statement of case. There would though be no site visit. If the Inspectorate considered that the simplified procedure was not suitable, then the appeal would proceed by the normal written representation, hearing or inquiry routes.

This would allow a quick and inexpensive means for applicants to challenge conditions, including precommencement conditions. It will be cheaper and quicker and more likely to be used than the present section 73 option. Provided that the Inspectorate deal with such appeals expeditiously, a development could proceed uninterrupted.

Richard Harwood OBE QC is a barrister at 39 Essex Chambers.  He can be contacted on 020 7832 1111 or This email address is being protected from spambots. You need JavaScript enabled to view it.. He is the author of Planning Permission published in February 2016 by Bloomsbury Professional and available here.