Conditions Q & A DCP Section 4.4

The power given to planning authorities to impose conditions on planning permissions is an extremely important part of the development management process. A refusal of permission that did not involve consideration of the use of acceptable conditions to mitigate identified harm, or a permission that did not include suitable conditions to safeguard matters of planning importance, could well be subject to challenge in the courts, at appeal or perhaps a maladministration complaint to the Ombudsman. On the other hand, local authority imposition of conditions considered unreasonable for a complexity of reasons is also open to question. The whole system of conditional control is given teeth by the fact that breach of a condition may be the subject of enforcement action, as described at (4.512). The question of whether a permission may be preserved where there has been breach of a condition requiring certain things to be done prior to commencement (a condition precedent) is dealt with at 6.342). Following on from this are related issues of enforceability and the status of any remaining conditions attached to the permission.

Q & A    4.4/10

My client submitted a detailed application for three houses. I now learn that permission is about to be granted for residential development of the land, but subject to a condition restricting the number of units to two. My feeling is that the local authority is acting beyond its powers in so doing.

Paragraph 84 of Circular 11/95 on conditions is relevant to this situation. Here it states that a condition modifying a development may not be imposed if it makes the development substantially different from that comprised in the application.  There would not seem to be much doubt that the reduction in the number of units by what is in effect 33% would derogate from what has been applied for to a substantial degree.

A housing development with which I am involved is acceptable to a local authority provided that improvements are carried out to a nearby trunk road junction. However, the Highways Agency have indicated that it would not be willing to undertake the work in the foreseeable future and the local authority has indicated that a Grampian type condition would not be appropriate in these circumstances quoting conditions circular 11/95. However, I remember reading of a court judgement which indicated otherwise. Can you assist?

According to the House of Lords judgement in British Railways Board v secretary of state & Hounslow London Borough (1994) a developer has a right to a permission even though there is no reasonable prospect of enabling off site works being carried out within the time limits of a permission.  Here the local authority owned necessary access land and refused under any circumstances to sell it to the developer. However to date the secretary of state has persisted in the advice given in circular 11/95 that a Grampian condition, which would require that the development not be commenced or occupied until necessary off site works have been undertaken, should not be applied unless there were reasonable prospects of performance.

I would like to know whether it is possible to apply a limited period condition to a telecommunications mast or similar installation. I know that local authorities routinely apply a condition requiring removal when a structure becomes obsolete, but has this been taken a step further?

There do not seem to have been any telecommunication mast/installation appeals allowed with a condition requiring their removal after a set period of time and PPG8 does not provide general guidance on the use of temporary conditions in telecommunication permissions. However, Annex 4 of PPG8 does state that where there is potential for radio interference from a transmitter or non-radio equipment, it may occasionally be appropriate to grant temporary planning permission to allow for a trial period of operation. It is recommended that this course should not be adopted unless there is evidence of significant interference, and only as an alternative to refusal. It also recognises that for national broadcasting and telecommunications services a temporary planning consent would generally not be considered acceptable by the operators.

Response

In (Brecon Beacons N.P. 12/1/99) a condition required that all telecommunications equipment should be removed from a site and land restored to its former condition within 10 years. No significant discussion on the appropriateness of applying the condition was given in the appeal letter with the inspector merely stating that the condition should be imposed to ensure the eventual removal of the development when no longer required.

A case submitted by DH (North Dorset D.C. 22/7/98) involved a "tree" mast resembling a Scots Pine in an AONB. The trees surrounding the appeal site were in poor health and there were few young trees growing up to take their place. As the site was exposed it was considered possible that a severe gale could damage the larger trees. There was therefore a risk that, for reasons that were beyond anyone’s control, the mast could become a more prominent feature within the AONB. To prevent a potentially unsatisfactory situation to persist an inspector imposed a 5 year limited period condition.

I note a recently reported instance where a mixed use leisure and retail scheme was permitted but the development company later pronounced that the leisure element was no longer viable and it was the intention to not to proceed with it, just the retail part of the project.  What is to stop a developer using desirable uses as a Trojan horse for a retail development?

The problem is that in planning law there is no provision that a development, once approved, should be completed. Circular 11/95 advises that conditions providing for completion of the whole of a development should not normally be applied, but states that it may be reasonable for a condition to require the completion of part of a scheme before another part, which a developer may be "inclined to defer or omit", is commenced.  This covers the type of situation you mention, but clearly if such a condition is to pass the "reasonability" test it would need to be shown that the retail element would not otherwise have been permitted but for the package with which it was presented.

We act for a client proposing a children's animal farm as a form of rural diversification. The council is recommending approval subject to an agreement or condition limiting visitor numbers  and the use of best endeavours to secure bus provision. We wonder whether these requirements are acceptable and if there are precedents?

Allowed cases relating to this type of use do not often feature at appeal.  However, looking at rural visitor attractions as a whole it is clear that local authorities are rightly concerned to secure that such developments, if acceptable in principle, remain limited in their capacity, and do not grow into enterprises which would create highway/amenity problems, or cause landscape harm.  The problem with visitor number ceiling conditions is enforceability, and curbs on the amount of parking or opening hours are often looked at as  better alternatives. However, reference has to be made to the Yorkshire Dales case (see DCS No.36562616) concerning a garden open to the public, where a wide range of restrictive conditions were applied by an inspector, including a detailed visitor management scheme. Conditions or agreements relating to bus access may be justified as part of the concept of green transport planning urged by PPG13, but their utility has to be tempered by the ability of a particular applicant to influence the way in which clients make their way to a proposed enterprise.

A local authority imposes a condition on new housing development within or adjacent to conservation areas preventing the erection of TV aerials and satellite dishes. Given that these days most households expect to have a television, with an increasing number requiring satellite dishes,  I question the validity of such a condition, especially where it is only by reason of an external aerial that a signal may be gained. Are there any appeal decisions that would throw light on the matter.

A condition may be validly imposed which takes away permitted development (PD) rights or requires permission to be sought for something that would not otherwise be development (such as conventional TV aerials).  This principle is made clear in Circular 11/95 paragraph 86, but  paragraph 87 contains a presumption against such restrictions, citing the criterion of reasonability.  PPG8 on Telecommunications states that PD rights should not be withdrawn unless there is a real and specific threat to a locality, but also talks of encouraging housing developers to install communal systems.

Unfortunately, I cannot identify any appeal decisions that relate to aerial/dish restriction conditions on new housing permissions in conservation areas. Do readers know of any examples?

A matter I have never been sure about is whether a planning condition can be used to require the payment of a necessary financial contribution. A number of articles published in Planning have added to my uncertainty.

There is nothing in planning law related to conditions to say that they may or may not be used to secure financial contributions. However, both Circular 11/95 and its Scottish equivalent Circular 4/1998 state that…"no payment of money or other consideration can be required when granting a permission….except where there is specific statutory authority." However, the Scottish Circular goes on to say that there may be certain circumstances in which this general proposition should not apply, and it cites compliance with the conventional six tests for conditions (reasonableness, relevancy etc).

It would seem that as a general principle, the courts have been unwilling to concede that payments should be exacted in respect of the grant of regulatory permissions in general, unless there is specific statutory authority.  However, as Circular 4/1998 advises,  the courts have also laid down a series of tests for conditions in general, and if requirement for a financial payment satisfies these tests, imposition may not in fact be beyond the powers of a local authority.

Application was made to join a walled garden associated with a now demolished mansion, to form part of the curtilage of a former estate worker's cottage.  Permission was granted but with conditions that my client finds unacceptable. The use has not yet been implemented but investigations have now revealed that there is sufficient evidence to support a LDC application. However, even if it issues a certificate, the council maintain that the conditions on to the planning permission still apply. What is your interpretation?

An LDC does not expunge an existing planning permission and its conditions. Technically, when this development is implemented, those conditions become enforceable if not complied with.  Perhaps the better course of action would be to apply to have the offending conditions removed, and assuming that a refusal resulted, let an appeal inspector decide whether there was inappropriate original imposition in the light of the facts of the case.

An agricultural occupancy condition was applied in 1951 to four farm cottages, only two of which were built. However, the form of the condition only referred to a "dwelling" in the singular. Does this fact have any implication for the validity of the condition?

This situation probably arose as the result of a clerical error at the time, in that the standard condition expressed in the singular was routinely applied without being adapted to refer to the plural. In a recent Court of Appeal case  Fisher v Wychavon Council (2000) it was determined that a temporary condition which should have referred to five years, only referred to 'f years. The appeal judges ruled that in this case there was discernible intention that the permission should be temporary and they refused to strike out the faulty condition to make the permission a permanent one. Although it dealt with different circumstances, application of this judgment to your case might mean that the courts would take the view that it had been the discernible intention fifty years ago that the agricultural occupancy condition was to apply to all the dwellings.

A farmer has applied for permission to demolish agricultural buildings and build executive housing. The site lies within a town development boundary and it is likely that permission will be granted.  There are fears that this will result in the lost stock buildings being replaced in an adjoining Area of Outstanding Natural Beauty using permitted development rights. Can the planning authority attach a condition to the housing permission withdrawing such rights?

Such a condition will, of course, have to satisfy the tests in Circular 11/95, and that advice does not favour the removal of permitted development rights except in exceptional circumstances. Although the appeal site and the adjoining farmland are in the same ownership, any condition would have to be reasonable and relevant to the development to be permitted. Therefore, it would have to be shown that there is a reasonable probability that the farmer would require new buildings within the AONB as a direct consequence of the housing development and that there would be serious landscape harm if this were the case. In the latter respect it will need to be considered whether the local authority would be able to mitigate such harm though the use of its powers under the prior notification provisions in Part 6 of the GPDO. Thereby it is possible for the local authority to refuse permission for the siting, design and external appearance of new buildings on landscape impact grounds, and the landowner would have right of appeal therefrom. Alternative courses of action could be the making of an article 4 direction removing permitted development rights, or that the council could request that the owner enters into a legal obligation preventing the erection of any buildings under the GPDO.

Neighbouring occupiers of a pair of semi-detached houses wish to carry out symmetrical forward extensions sharing a common party wall. The local authority concerned does not object in principle but is concerned that it may not be able to ensure that each half was built simultaneously. Is there way of overcoming the local authority's fears through a planning condition or obligation?

This local authority may be constrained by the advice in Circular 11/95 which states that conditions requiring that the whole of a development is to be completed are likely to be difficult to enforce and should not normally be imposed. However, this guidance was probably not conceived with regard to the specialised type of situation that we have here and one can envisage a form of condition that would ensure a simultaneous and symmetrical development, such as would require no occupation of either extension until both are completed. If there are still doubts as to the suitability of such a condition, a section 106 planning obligation could doubtless be devised.

My local authority has recently permitted replacement uPVC windows to an unlisted block of flats, but on condition that some existing windows which do not form part of the approved scheme must be painted white to match. Is this a valid condition?

It is frequently required that materials of a new addition to a building match the existing, and of course this presents no problem in satisfying the relevancy criterion in Circular 11/95. The other way about, as posed in your unusual example, I would have thought that the same legitimacy would apply, there being a clear planning objective to maintain the visual coherence of a building. However, if the other windows required to be painted white are not in the applicant's control, such a condition would certainly fail on enforceability grounds and would therefore be ultra vires.

My authority is exploring the option of not using section 106 agreements to secure highway alterations and improvements arising from planning applications, but instead to use a planning condition to require an applicant to enter into an agreement under section 278 of the Highways Act. Have you any view as to the validity of such a condition?

In Circular 11/95 paragraph 13 it is stated that permission cannot be granted subject to a condition that the applicant enters into a planning obligation under section 106 or an agreement under any other powers. This would appear to be conclusive advice that your authority should not go down this road, although the Circular is only ministerial guidance and does not have any legal authority.

Members of my authority have asked whether a planning policy can be introduced to require all applications for retail uses to include the provision of customer/public toilet facilities, independent of the workplace and building regulations. Has such an approach been tested on appeal.

I do not know of a retail case, but in a decision from North Cornwall  concerning rural workshops, a condition which required toilet and washing facilities was challenged. An inspector stated that he did not believe that matters of adequate lavatory facilities formed any part of the deliberation of whether premises were suitable for a particular use. He pointed out that legislation was available to the council to ensure that  sanitary accommodation was provided where people were employed, and discharged the condition as ultra vires.  For the reason given by this inspector I doubt that any policy as proposed would survive the local plan process.

A condition was placed on a permission for a barn conversion which prohibited any further vertical or horizontal subdivision of the internal space over that shown in the approved plans. The local authority reason for the condition was stated to be the protection of the character and integrity of the original building, particularly views of the roof structure. My client now wishes to insert a mezzanine type floor in part of the barn. How far is such a condition reasonable where a barn is not listed?

Conditions of this type are often imposed, even when the barn concerned is not listed. Local authorities may justify them on the basis that policies relating to the conversion of rural structures to residential use normally only permit such a change of use if essential character is preserved. A condition which allowed residential conversion but prohibited internal subdivisions would be unreasonable if it prevented the achievement of a viable living unit, but many unconventional solutions have been successfully devised. For instance in an appeal case from Chichester determined earlier this year a glass floor was permitted which retained some feeling of the original space contained within a barn and also allowed glimpses of the roof joists.

In removing permitted development rights by means of a planning condition is any such condition nullified or made unenforceable if it only refers to the General Permitted Development Order (GPDO) in force at the time of the original imposition, but makes no mention of any subsequent changes to that legislation which may have occurred?

Circular 11/95 provides a model condition which removes permitted development rights for specified householder development both in respect of the current 1995 Order and "any order revoking and re-enacting that Order with or without modification". Similar wording is applied to the model condition relating to restriction of the freedoms given by the Use Classes Order. Clearly such provisos were thought necessary in order to maintain the force of conditions which remove planning rights should either statutory instrument be amended in the future. However, some may take the view that the explicit reference to the GPDO or Use Classes Order in the form of condition contained in Circular 11/95 is not vital to its interpretation, and that part of it which bars the development specified is sufficient to allow a local authority to retain control. I am not altogether convinced of this and the views of readers are invited.

Response

You are right to have doubts if the judgement in Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] is followed.  In this case it was held that if it was intended to exclude the operation of the Use Classes Order or the General Permitted Development Order, any condition should say so otherwise it must be assumed that those Orders will have effect by operation of law. This point was confirmed in Dunoon Developments v Secretary of State for the Environment and Poole Borough Council [1992]. Unfortunately neither judgment deals with the nub of the original question which related to the effect of omitting reference to successor Orders. Perhaps the answer lies in a court judgement outside the planning sphere?

My authority is considering an application for a LDC in respect of a house in a rural area which is subject to a personal occupancy condition. This reads that "The permission hereby granted shall only enure for the benefit of xxxxxx and for no other persons without the written permission of the local planning authority"  The request is for a certificate that occupation of the house by others is lawful and it is argued that the effect of the condition was discharged at the point that the dwelling was initially occupied by the named persons. Can this be correct?

A very similar situation was considered in Knott v Secretary of State for the Environment [1996].  The condition in contention here simply read that "The permission shall enure solely for the benefit of Mr and Mrs A. Knott". The court held that the permission took one to the stage where there was a completed building which the Knotts were entitled to occupy. The permission had then "enured" for their benefit and could subsequently be occupied by others without breach of the condition. It would seem that the applicants in the case before your authority have a strong point, even though unfettered occupation was clearly not the original intention of your local authority.

I have been dealing with a garage which was granted planning permission on appeal to display ten cars for sale at any one time on any part of the site. The forecourt is in fact congested with cars lined up facing the road with a sign on their roofs advertising the garage and also a motor vehicle warranty scheme. Only ten vehicles display a "for sale" sign although for all intents and purposes it would appear that all the vehicles are for sale.  The owner claims that these cars are awaiting collection after having been valeted. Are these vehicles in breach of the condition?

Most forms of condition which impose a numerical limit are subject to enforceability problems and for this reason restrictions on the number of cars displayed for sale at garage premises tend to specify a particular defined part of the site where display for sale may take place.  As this was not done in the case you describe the situation is less easy to monitor, and is made all the more difficult because of the presence of the ambiguously signed vehicles on site. However, if your authority has reasonable grounds for suspecting that some or all of the "valeted" cars are in fact being displayed for sale it should take enforcement action. If the matter proceeds to appeal the onus will be on the garage owner to show that the additional cars present on the requisite date were there for some other purpose in connection with the business and were not for sale.

I am in receipt of a planning permission for a housing development to which a condition limiting the hours of construction has been applied. It is considered that such a condition is unreasonable, but how has the question been dealt with by the Planning Inspectorate at appeal?

Much depends on whether the new development is to be constructed in situations where sites, or the accesses to them, are particularly confined, and unacceptable harm to residential amenity would result from unrestricted demolition and building activities. There are many appeal examples of hours of construction conditions being applied at appeal in these circumstances, but in other more conventional situations such conditions are less likely to be supported. A very recent appeal case of interest demonstrating a relaxed stance came from the Forest of Dean (DCS No. 51924304). Here, in relation to a development of eight houses, an inspector observed that he saw no reason why disturbance arising should be any greater than that which might arise from construction at any site in a residential area. He added that should a statutory nuisance occur it could be addressed by other legislation.

Planning permission was granted in 1987 for use of land for the stationing of caravans for holiday purposes. A condition restricted occupation so that they would not be occupied between the period 31st December and Ist march in any year. In 2001 the  owner of the land applied for variation of the condition to allow holiday occupation for 12 months. Permission was granted subject to a new condition restricting occupation to a period of four weeks for any single letting and no return within four weeks by the same household.  One of the caravans was in occupation at the time the permission was granted. I therefore believe that the permission was implemented when it was issued, but the developer has appealed against the new condition. Can the developer still rely on the former condition while the appeal is being determined, or has a breach of condition occurred?

A successful application to amend a condition leaves the old permission intact and un-amended. This was confirmed in the court case Powergen UK plc v Leicester City Council and Safeway Stores Ltd [2000]. Therefore, in theory the applicant in your case retains the option of conforming with the old condition or the new one. As to enforcement this cannot normally be sustained if a permission has not been implemented as there can be no breach of any condition until that event. The answer to your question would seem to be that the appellant can use the old permission for the time being and there would be no breach of planning control by so doing. The matter of whether the second permission has been implemented is harder to assess in this unusual situation.

I am seeking removal of a planning condition imposed on a retail warehouse permission preventing the sale of "white goods". While I am aware that this term normally refers to large electrical appliances such as refrigerators, freezers, washing machines and cookers, is there any formal definition upon which I can base my case?

It is very important that planning conditions are precise, and particularly so where interpretation is of critical commercial importance. While the term "white goods" is normally used in the retail trade to refer to the items of kitchen based electrical equipment to which you refer, I know of no definition which has been adopted for planning purposes.  Can any reader help?

What exactly is a "habitable room"? I have previously interpreted the term to include bedroom and living rooms but not bathrooms, landing areas or utility rooms. Kitchens are somewhat different. I have tended in the past to include them as non habitable. However, in many households the kitchen is the heart of the house where occupiers may spend considerably more than, for example, a front room. Is there any guidance on this issue particularly as many LPA's attach conditions referring to habitable rooms?

Conventionally the definition of a "habitable room" has been taken to embrace living rooms, dining rooms and bedrooms. However, if a kitchen is a dining kitchen it may be included in the definition. In practice the term is often used as a measure of housing density but may be encountered in planning policies designed to protect the light entering or the aspect from an existing "habitable room". In the latter context the matter came before the courts in Jackson v Secretary of State for the Environment & High Peak District Council [1998] where a planning inspector had assessed that a small room fitted out as a kitchen, which was in fact used as a television room/office, was not a habitable room. The court held that the inspector had been unreasonable in his assessment, irrespective of whether the room should have been called a kitchen under the Building Regulations. The room was clearly one in which the resident spent a considerable amount of time and enjoyed a view from. The decision to allow a house on adjoining land was quashed.

I am currently preparing for an appeal in which I act for the owner of a pig farm which he wishes to develop for residential purposes. The farm lies with a green belt area but is within 120 metres of a large housing area on the edge of a sizeable town. There have been many complaints over the years from the nearby residents regarding smell nuisance and I am seeking to argue as "very special circumstances" that the local authority has allowed housing close to this existing pig farm. Are there any cases where a pig farm has been redeveloped for housing in these circumstances?

The court case North v Secretary of State for the Environment [1995] centred on a very similar situation. Here a green belt pig farm was also in close proximity to houses and residential development was proposed. At appeal an inspector accepted that smell created a nuisance for neighbours, but did not think that the removal of that nuisance was a very special circumstance. He felt that the farmer could reasonably have taken into account the environmental effect of substantially increasing the number of pigs ten years previously, and this effect could not be argued subsequently as a very special circumstance. The court held that the fact that the applicant had expanded his enterprise near the housing did not diminish the desirability of removing the use entirely from the site, therefore eliminating the smell. The case was remitted to the Secretary of State on the basis that the inspector had not properly substantiated his conclusion. On reconsideration of the case it was allowed on the basis that there would be a great improvement in the living conditions of residents and the visual quality of the green belt itself.  It was also noted that the service of abatement notices would be unlikely to improve the odour nuisance. Subsequent to this ruling a notable call-in case decision in 1998 saw 30 dwellings allowed at a green belt pig farm near Newark where improvements to residential amenity were considered to be very special circumstances.

I am dealing with a case involving an application under section 73 of the Town and Country Planning Act 1990 to vary a standard condition related to time limits for the submission of reserved matters. In this case an outline permission was granted in 1991 for seven dwellings and reserved matters were approved and implemented in respect of two of the units. I wish to vary the condition in respect of two plots remaining in my client's ownership out of the balance of five. It is accepted by the LPA that the outline permission has remained extant, but it will not agree that the condition may be varied in such a way as to provide for the submission of reserved matters for the remaining units in two different stages. I would welcome your advice.

Section 92(5) of the 1990 Act provides that reserved matters conditions may apply separate time limitations to different parts of a development, and this is confirmed in conditions circular 11/95 paragraph 56. I appreciate that the situation in your case is slightly different in that variation of a condition already applied is sought, but it seems to me that the same principle should hold. Have readers any experience of this particular point?

My client wishes to move his caravan site from one field to another, and has offered to surrender his permissions relating to the vacated site. I am suggesting to the local planning authority that this may be accomplished by means of a condition attached to the new permission, but have been told that  such a condition could not be validly imposed. Is this the case? JP

A planning condition does not formally revoke an extant planning permission, and there will be an enforceability problem should the vacated site be sold to another party. In your case, any new owner may wish to re-establish the caravan use yielded by your client, but the local authority would be impotent to enforce against breach of the condition as the site would no longer be within his control. This would effectively make the "surrender" condition invalid, and the local authority are right to resist any suggestion that it impose it. The only solution is for your client to put forward a planning obligation which runs with the land and binds any successors in title.

My client has a permission for a holiday unit formed from a barn in a rural area. A condition requires that the property shall not be occupied as a permanent dwelling or by any persons for a continuous period exceeding 28 days in any calendar year. It is also required that a register of occupiers shall be kept available for inspection by the LPA.  I had always thought that such a condition was considered to be unenforceable and wonder whether it would be possible to have it removed.

The question of how to secure that uses permitted as holiday accommodation remain as such, has bedeviled the planning system for some time, given that the courts have ruled that a change from holiday use to permanent use is not material. Until relatively recently the prevailing wisdom was that the most enforceable way to secure holiday accommodation was to apply a seasonal restriction. This would specify that the accommodation should not be occupied during a specified period in winter. Such a condition had the advantage that a single winter inspection was all that was required to check for non-compliance, but its drawback was that it did not necessarily restrict non-holiday use during the other months of the year. However, prompted by a court decision in 1992 where it was ruled that a condition which specified holiday use was not necessarily unenforceable, conditions Circular 11/95 included advice that holiday only conditions may be applied. Many local authorities, as in the case you cite, supplement holiday use only conditions with maximum stay and letting register requirements. At appeal holiday only conditions are supported where it can be demonstrated that permanent residential use would harm planning policies, but there are examples where further restrictions have been held to be unnecessary and unreasonable.  In answer to your question, and without knowing the exact planning circumstances, I would have thought that an application to remove your client’s condition could be justified, even if the result was only a relaxation.

We recently obtained planning permission for a youth club and a condition was added that "No graffiti writings or drawings shall be retained to the painted external walls of the building and the applicant shall be responsible for their removal at regular monthly intervals if required and to paint to match the existing."
Is this a valid condition and does the addition of "if required" mean that the applicant rather than the LPA could decide it was not required?

I am not aware of any appeal dispute relating to a similar condition. The basic test to be applied to conditions of this type is whether they are a reasonable imposition without which the development could not be permitted. Clearly this condition relies on a hypothesis that a grafitti problem would in fact occur after the development is constructed, and that if it does it is the responsibility of the appellant to remedy any environmental harm caused by third parties. My inclination is that such a condition would fail if subject to scrutiny in terms of the tests in Circular 11/95 in that it has too tenuous a relationship to the likely land use and environmental impact of the development and the responsibility of the applicant. I agree that the wording "if required" does not make it entirely clear who is to do the requiring, although it is seems likely that this is intended to be the local authority. However, this brings an element of imprecision into the condition, which only serves to diminish its vires.

Where a planning application is subject to a legal agreement, planning permission is not granted until it is signed, although a decision has effectively been made. As it may take several years for an agreement to be signed, that application remains outstanding on the council’s books and ultimately affects the local authority figures in terms of time taken to determine applications. Can the local authority overcome this by granting permission subject to a condition that requires a legal agreement to be signed prior to the commencement of the development?

Advice in conditions circular 11/95 is that planning permission cannot be given subject to a condition that requires an applicant to enter into a planning obligation. What you are proposing is effectively that and therefore I would anticipate problems. In some cases where the potential subject of an obligation is works to be undertaken outside the boundaries of a site requiring the agreement of a third party it may be possible to deal with the difficulty by means of a Grampian type condition. This can require that a development is not commenced or occupied until specific works or actions have been undertaken.

Our client has built a domestic garage subject to a condition that existing parking spaces should be reserved for visitors to specified dwellings. He lost an appeal against the condition three years ago. He now wishes to allocate the parking spaces to other occupants. If the permitted garage were demolished, could the local planning authority enforce the condition? I have been unable to find any other precedents, but in my view the condition would no longer comply with the normal test of fairly and reasonably relating to the permitted development.

Generally, on the question of when a development is demolished whether any conditions applied thereto have any further effect, it seems  to me that once the development which prompted the condition in the first place has gone, that condition would no longer have any effect for the reasons you state. As this is a fairly unusual situation it is difficult to find precedents and I wonder if readers have any experience of this matter?

Planning permission was granted in 1986 for a new dwelling subject to a condition requiring a highway visibility splay. The dwelling was built in 1987 but the visibility splay was never provided. Planting has grown within the splay area resulting in a TPO being imposed recently. I contend that the splay condition can still be unilaterally implemented by the property owner and the affected trees otherwise protected by the TPO may be felled. The local authority takes the opposite view, but which is correct?

The wording at article 5 of the schedule to the Town and Country Planning (Trees) Regulations 1999 allows "the cutting down, topping, lopping or uprooting of a tree where that work is required to enable a person to uproot a tree to enable a person to implement a planning permission" as an exemption to the effect of a TPO. As the permission in your case has already been implemented and compliance with the splay condition cannot now be enforced, I would have thought that there is a strong case that the TPO should prevail. However, this is a legal point which may need to be clarified by the courts. Does any reader have a view on this interesting question?

A skateboard and BMX facility was granted permission on the edge of a local park. Because of local concerns a management plan formed part of the application documents and a condition was imposed that the development should be operated in the manner detailed in that plan, to ensure that the amenities of nearby properties were safeguarded.  The management plan stated that the site was 40 metres from the nearest property, and separated therefrom by a road and a densely planted embankment. The development has taken place but the densely planted embankment has been cut back, in most places to ground level. Is the validity of the permission affected by these changed circumstances?

If the management plan was devoted to operational matters, and did not specifically refer to the retention of the embankment planting, I doubt whether its later removal has breached planning control. However, I can appreciate that reference to the planted embankment in the plan may well have prompted the assumption that it was to be a permanent feature which would mitigate amenity harm from the development.

I have obtained a lawful development certificate (LDC) in respect of a 10 year breach of an agricultural occupancy condition, and as a belt and braces exercise have submitted an application under section 73 for the deletion of the condition. I acknowledge that there would be a conflict with the local plan but maintain that the LDC is a material consideration. The planning authority is contemplating another approach, that the LDC may have been obtained by false or misleading evidence (although they are not saying that is so in this case), and that therefore it may not be such a persuasive consideration. If this approach were adopted then the value of an LDC for any existing activity would be almost nil?

The content of an LDC as to what is lawful relates only to the state of affairs on the land on the date of the application, and if granted is conclusive in response to any enforcement notice subsequently issued. Under section 194 of the 1990 Act it is an offence to secure a certificate by deception and an Authority may seek a revocation under section 193 (7) in such circumstances. To imply that there might be such circumstances behind every certificate and to determine planning applications on that basis would seem to me to be highly inappropriate and lay the authority open to claims of unreasonable behaviour.

The proper approach must be, as stated in Circular 11/95, to consider the need for the condition. A condition ought not to be imposed unless there is a sound and clear-cut reason for doing so. This principle applies equally to applications under section 73 where a condition must not be retained unless there is a similar justification. The certificate will be a consideration in the unlikely event that it might indicate a lack of continuing need. In practical terms a refusal to remove the condition would not change the legal position in that there can be no enforcement of it while the dwelling is occupied by someone not employed in agriculture. In the unlikely event of the dwelling becoming re-occupied by somebody else complying with the condition, it is possible that any further non-compliance could be enforced.

A local planning authority grants a planning permission for an extension that is within their guidelines relating to rear amenity space. A condition removes permitted development rights for further outbuildings in order to protect the amenity area. If the applicant were to build a structure at the end of the garden prior to starting the permitted extension, would there be breach of the condition? My opinion is that there is no breach provided the planning permission has not been implemented.

It is accepted practice that a condition cannot be breached if the development authorised by the permission upon which it is imposed has not been commenced. The only exception to this rule is in the case of standard time limits to which the permission itself is subject. In terms of breach of condition notices the law makes it clear that a notice may only be served on a person who is carrying out or has carried out development to which the condition relates.  Your question would appear to indicate a loophole in planning control, but I am not sure that it is one that is widely exploited. Have any other local authorities had cause for concern?

My authority’s standard conditions for trees and landscaping are effectively an amalgam of the model conditions in Circular 11/95, including the requirement to replace any trees or plants within a five year period from implementation. To what extent are occupiers of a residential development in a parkland setting having a number of protected specimen trees at liberty to plant what they like in their gardens contrary to the approved scheme? What is the lifetime of the approved landscaping scheme? Can an occupier immediately after completion of a scheme, carry out additional planting, such as unsuitable leylandii?

I assume that the conditions you are using embody just the one time period of five years for replacing lost or failed trees or plants. It seems to me that once that term has run the obligation falls and the occupiers may remove or replace any part of the landscaping scheme, other than the protected trees. So far as the planting of other trees and shrubs is concerned this does not fall within the definition of development within the Town and Country Planning Act 1990 and as such can be carried out without the need for planning permission, and would not strictly be in breach of the terms of the standard condition  If you wish to prevent such activity, bearing in mind that conditions must be reasonable, you need to specifically tailor a condition to suit the special circumstances of the site development.
Pointers might be to add control where it is wished to avoid enclosures where an open aspect is important, and new planting may be made the subject of fresh Tree Preservation Orders if vital to the long term setting or character of an area.  It may also be appropriate to impose a longer period for the condition where major schemes are being implemented such as strategic planting for major residential or commercial estate developments.

Your question shows the risk in using standard conditions which may not meet the actual needs of the case in question.

A field was designated for industrial use in the 1950s but this allocation was removed in the 1960s because it was felt that minerals would be sterilized. The minerals were worked out in the 1970s and the land restored to agriculture as required by condition. It was acquired by a farmer, who found that the land would not grow anything, and he recently sold it on. It has become apparent that the reason the land was unusable was that some of the restoration conditions had not been complied with relating to drainage, original soil restoration and levels. A certificate of assurance, that the conditions had been complied with, was not requested by the local planning authority. Would the fact that ten years have elapsed without compliance, make the condition which required the land to be restored to agriculture invalid, therefore making the site "previously developed land" in PPG3 terms?

The fact that the requirements of the restoration condition have not been complied would not normally mean that it is invalid, rather that it is now incapable of enforcement because of the ten year rule immunity period. This is a matter of law, but interpretation of PPG3 policies and whether a site is "greenfield" or "brownfield" is a question of the reasonable judgment of a decision maker based on the physical facts as they now present themselves. I can imagine that if this issue came before a planning inspector at appeal it would be held that the outward appearance of the site was that of open undeveloped land, and therefore no matter what its planning history and the lack of current agricultural utility, it should be treated as "greenfield". From the facts you give it may be that in the future this land could become available for development, but not until the supply of sequentially preferable land has been used up.

A client of mine recently purchased a dwelling with a detached barn. The previous occupiers of the dwelling had been granted permission over 20 years ago by the LPA to use the barn as a "function room" for their own domestic use. This permission included a personal condition referring to the then occupiers by name. Since no reference is made in the personal condition to the use of the barn following the sale of the property, can you confirm whether the use of the function room reverts to its previous use (a barn), whether the building has a nil use by default or if whether there is simply a function room that the new occupier cannot lawfully utilise unless an application is made to vary the relevant condition.

The position is that the continued use of the barn by your client, not being the person named in the original condition, is unlawful and could be subject to enforcement action against breach of that condition. Without knowing the full planning history it is difficult to be certain about any reversion or use rights that apply. However, the barn may be used agriculturally at any time without permission if re-associated with farmland.  The expedient thing to do is to apply to have the condition lifted completely. Although I am not aware of the circumstances behind the original imposition the LPA may have some difficulty in resisting such a proposal in the light of national policy, which does not normally favour personal conditions. Even if the LPA will not accede to this it could be prepared to allow continued use of the barn for purposes ancillary to the main dwelling but without any other form of restraint.

My client wishes to use up his permitted development rights to erect garden buildings under part 1 Class E, and then apply for permission for a replacement dwelling in a green belt area. The logic behind this lies in the fact that local authorities normally impose a condition on replacement dwellings removing permitted development rights altogether. Can you see any flaws in this approach?

A condition requiring demolition of the existing house is standard when a replacement rural dwelling is being permitted, and it is possible that this could be so worded as to include all existing ancillary buildings. If such an all embracing condition were imposed a local authority would have to justify it as reasonable and relevant to the permission for the replacement dwelling, and this may not be easy. However, assuming that things progressed conventionally and the original dwelling were replaced and removed, the outbuildings left on site would remain within the same planning unit and their legal status as ancillary residential structures would transfer from the old dwelling to the new.

I am currently dealing with a case where an enforcement notice has been issued against a 1.8m high means of enclosure adjacent to an area of open space and footpath. This would have ordinarily have been permitted development but the property curtilage was extended some 20 years ago with planning permission and a condition was applied taking away rights to build walls and fences.  However, the permission expressly allowed a one metre wall, which would seem to be at odds with this condition. My question is whether the condition is ultra vires and if so could permitted development rights be reclaimed allowing the wall now enforced against?

It is possible that a condition may be considered to be void on the basis that it contradicts the basis of what is being given planning permission. I imagine that in this case the intention of your council was to limit the use of permitted development rights to build a wall in excess of the one metre allowed by the permission, and the condition should have made this clear. Should an appeal be made against the enforcement notice, it is certainly open for the appellant to argue before an inspector that the condition has no effect, and therefore the notice should be quashed. However, if your council can show that its original intention was as I suspect, this ground may be difficult to sustain.

Planning permission was granted for three dwellings and associated parking facilities, and additional spaces for an existing public car park. My client has instructed me to proceed with the development, without the public car parking, as there is no mechanism in the permission to require the spaces to become public and the Council has publicly declared that they are not needed. However, an application to relax/vary a planning condition that requires the spaces to be completed and made available prior to the occupation of the dwellings has been refused. The Planning Officer considers that the requirement for the public spaces could not be relaxed under the terms of sec. 73 as these were an integral part of the original application. Can sec. 73 be used to vary part of a development included in the description of the development permitted, or would such an application to vary an integral part of the permission be invalid?

Sec. 73 of the 1990 Act makes it clear that a planning authority faced with such an application must consider only the question of the conditions subject to which planning permission should be granted. Although it is also entitled to consider generally the circumstances that led to the original grant of permission, in R v Coventry City Council ex parte Arrowcroft Group Plc 21/7/00 the High Court ruled that a planning authority has no power to vary conditions in such a way as to radically alter the nature of the permission. In this case it is arguable that, because the proposed development specifically included public car parking, the variation of the disputed condition in the way that you propose would result in a materially different permission.

My client owns an access serving his property and a number of others. Permission was granted for a neighbour to demolish his property and build a replacement, subject to a condition that a line of unprotected conifers is retained. It was assumed that these conifers were on that property's land but it has now been established that they are on my client's driveway. What is the status of the condition, and can my client cut down his conifers?

In principle, conditions can be imposed in respect of land within an application site over which the applicant has no control. However, Circular 11/95 advises that, among other things, conditions should be enforceable and reasonable. The fact that it is now known that the condition relates to a matter that is outside the control of the applicant raises obvious difficulties in securing compliance. While enforcement action could be taken against a third party who has not benefited from the permission, such as your client, my view in this case is that it would be likely to fail on the grounds that it would be unreasonable. However, although such action is discretionary, before advising your client to cut down his conifers it would be prudent to obtain a letter from the planning authority confirming that it would not seek to enforce the condition.

I am dealing with an occupancy condition where the word agriculture has been replaced by "pisciculture" and reference is made to its definition in the 1971 Town and Country Planning Act. However, the Act contains no such definition. Does that make the condition ultra vires and where can I find an appropriate definition?

I can find no reference to "pisciculture" in any planning legislation or related guidance. However, the best dictionary definition I have found is "the breeding, hatching, and rearing of fish under controlled conditions". The 1990 Act (Sec55 (4A) and the GPDO (Part 6 D1) both refer to "fish farming", which to my mind is the same thing, and this is defined as "the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean and mollusc)".

As to whether the condition is ultra vires, I think you could argue that since there is no definition of pisciculture for the purposes of planning control, the condition fails the tests of precision and enforceability, as required by Circular 11/95. However, I am not certain that that would be sufficient to have the whole condition struck down.

My client owns a house that was converted in 1989 into two self-contained flats. A planning condition requires these to remain ancillary to the use of the original house and form part of its curtilage, to "maintain control over the use of the land". My client now wishes to sell one of the flats with an allocated area of garden. No physical changes to the dwellings or the shared curtilage are proposed. Taking into account the condition, is a sale possible without applying for planning permission?

It is difficult to comment on this without the full facts of the case and sight of the condition. However, in my view, it does not appear to have been correctly applied originally. Clearly, the flats could not remain ancillary, viz. subordinate, to the use of the original dwelling, as that use would cease as soon as it was subdivided and there is no primary use. I also think that the reason given for imposing the condition is vague and meaningless. Presumably, the intention was to preserve the character and appearance of the area by preventing the creation of a separate curtilage, with associated external paraphernalia.

Circular 11/95 sets out the tests which conditions should satisfy. In my view, that part of the condition relating to ancillary uses is ultra vires and, in particular, fails on the grounds that it is unenforceable. However, it would be prudent to seek to resolve this matter by letter from the planning authority, confirming that it would not take any action, or by means of a planning application.

A planning condition relating to a new dwelling required a visibility splay over my client’s land, outside the application site, but was not worded in the Grampian style. Because of this, the absence of any related legal agreement and the need for my client’s wall to be lowered, the splay was not provided. My client thinks that his compensation rights for the affected land have been denied. He has served a purchase notice on the authority but this has been rejected as invalid, because it relates to land beyond the application site. Is this right and what recourse is open to my client?

The purchase notice system provides a remedy for owners of land left without any reasonably beneficial use following a planning decision, including a grant of permission subject to conditions. Sec.137 of the 1990 Act details the circumstances in which a notice may be served requiring a local authority to purchase the land, and policy advice is given in Circular 13/83. The latter explains that the notice must relate to the same area of land as that subject of the planning decision. It therefore follows that your client’s notice was invalid. Where an authority refuses to accept a notice, it must be referred to the SOS for consideration although this procedure may only apply to valid notices.

However, I fail to understand why your client believes that the land in question has been deprived of any reasonably beneficial use, especially as the condition appears to be ultra vires and incapable of enforcement, as it relates to land outside the application site and beyond the applicant’s control. Had it been a Grampian condition, then clearly the applicant could have been enforced against, in which case the value of your client’s land would have increased. Reference should also be made to paragraphs 37 – 39 of Circular 11/95 on the reasonableness of such conditions.

Response

In reply to the query concerning the failure of a local authority to impose a Grampian condition requiring the provision of a visibility splay before occupation of a proposed house, apart from being sheer incompetence, this is arguably maladministration, and a complaint should be made to the Local Government Ombudsman.

The so-called Grampian-type condition requiring the provision of a visibility splay on land outside the applicant's control before occupation of the proposed house would not have helped much and arguably might have created a worse tangle than the one that exists. A true Grampian-style condition would, of course, prevent a start on development until the splay has been provided. In this case, the condition would have allowed the house to be built but would not have secured provision of the splay, leaving vacant property served by an unsafe access.

Outline planning permission is sought for a dwelling. The Roads Authority is seeking visibility splays which would cut across land outside the site but on land owned by the applicant. However, the planning authority is concerned that a condition requiring these would be unenforceable if the ultimate developer is not the applicant or a person with control over the land for the splay, as any such enforcement action would be punitive. What are your views?

Similar queries have been raised in recent issues and I understand the authority’s concern. It seems to me that there are two ways round this problem. My preferred route would be to consider whether the application site could be enlarged to include the splay without materially affecting the character of the proposed development. The alternative would be for the planning authority to word the condition negatively, in the Grampian-style, thus preventing development until the splay has been provided.

An application for the transfer of an occupancy condition from a bungalow allowed on appeal in 1984 to an adjoining pre-1948 cottage was refused by my authority. I have appealed this decision. However, the Inspectorate has advised that there is no power to simply transfer a condition from one property to another. It therefore proposes to deal with the appeal as if it had been made against a refusal under sections 73 or 73A of the 1990 Act and let the Inspector decide whether it should be released, and if so whether that would require the imposition of a similar condition on the adjoining property. Do you think that this approach is correct?

The Inspectorate is strictly correct in ruling that there is no specific power available to transfer a condition and its approach seems a sensible way to deal with the problem. A precedent case from 1997 involved a proposal for the transfer of an occupancy condition from a post-war bungalow in Kent to a pair of cottages on the same holding. Here, an Inspector treated the appeal under Sec 73 of the 1990 Act as one for the continued occupation of the dwelling without complying with the condition, which had been the approach of the Council when it decided the matter. He allowed the appeal and granted permission subject to a new agricultural occupancy condition relating to the pair of cottages.

I am told that planning conditions which require the submission of further details cannot be attached to a planning permission for an application for which an Environmental Impact Assessment (EIA) has been undertaken, as all matters should be adequately dealt with in the Environmental Statement. Is this correct?

There is no specific reference to this in Circular 11/95, which deals generally with the use of conditions, the Town and Country Planning (EIA) (England and Wales) Regulations 1999, or the accompanying Circular 02/99. However, the latter advises that when an outline application is made, the planning authority will need to satisfy itself that there is sufficient information on the environmental effects of the proposal to enable a decision to be made on whether permission should be granted in principle. Where the Regulations require more information on the environmental effects for the Environmental Statement than has been provided in an outline application, planning authorities should request further information under regulation 19.

As with any other planning application, the planning authority may refuse permission for an application accompanied by an EIA, or grant it with or without conditions. Circular 11/95 advises that it may be appropriate, within the powers to impose conditions and in the light of the environmental assessment, to require a scheme of mitigation covering matters of planning concern to be submitted to and approved in writing by the planning authority before any development is undertaken.

Newly-built flats have been occupied without the car parking required by a condition of the permission, resulting in complaints of increased on-street parking. My department has asked for a Breach of Condition Notice (BCN) to be served requiring the provision of the approved parking, but not the cessation of occupation. This is a practice we have adopted in the past with no difficulties. However, our solicitor is concerned that a BCN would make the continued occupation of the flats unlawful, potentially breaching Article 8 of the Human Rights Act, and therefore recommends that future conditions omit the words "the dwellings shall not be occupied until". As most planning authorities adopt such wording in accordance with the model conditions in Circular 11/95, if the solicitor's view is correct, surely this has wide-ranging implications?

Article 8 of the Human Rights Act 1998 confers the right to respect for private and family life and for the home. In deciding whether there has been a breach of this Article, it would be necessary for the Court to consider whether a fair balance has been struck between the rights of the individual property owner and society as a whole: a claim can only succeed if the interference in the right of the individual concerned is not outweighed by the public interest. To date, this has happened very rarely.

In my view, your solicitor seems to be adopting an over-cautious approach and I am not aware of any specific legal authority that would support the action recommended. Unless this is based on such a precedent, in my view you should continue to follow the wording suggested in the model conditions set out in circular 11/95 until such time as any revised guidance is issued to take account of any issue arising from human rights legislation. I think that to do otherwise would seriously prejudice your authority’s ability to secure compliance with this type of condition.

Response

I was interested in your response to the query by ST relating to flats had been occupied without compliance with a condition requiring parking facilities prior to occupation (Planning 20 February 2004, p25). The question was asked whether a Breach of Condition Notice would breach Human Rights legislation.

My understanding (apparently confirmed in an article in the same edition which reported on a recent RTPI Yorkshire Branch Conference) is that if a pre-condition has not been complied with, then this makes the whole development unlawful.  It would therefore not be possible to serve a Breach of Condition Notice as the conditions themselves would no longer be enforceable. It would only be possible to secure compliance through an enforcement notice or injunction. In such circumstances the Human Rights abuse must rest with the developer, permitting occupation without compliance with a pre-condition, thus rendering those occupiers liable to such action.

A clay pigeon shooting use has been operated over the permitted development limit at my client’s farm where there is a long history of conflict with the planning authority over various other uses that have taken place. The authority has taken enforcement action, stating that it was not minded to grant permission for the use subject to restrictive conditions to safeguard amenity. Its sole reason for doing so seems to be that, because of the past record of my client, any such conditions are likely to be breached and would therefore be ineffective. Surely this is unreasonable?

Circular 11/95 explains that conditions should not be imposed if they cannot be enforced, not that conditions should not be imposed if there is a likelihood that they might have to be enforced at a later date. There are, of course, adequate powers for planning authorities to act against future breach of conditions. PPG18 advises that if an unauthorised use could be permitted with suitable conditions it is not expedient to issue a notice before asking for a regularising application to be submitted voluntarily.  Although I do not know the planning facts of this case, it might well be that an Inspector would allow an appeal if the use could be carried on subject to suitable conditions. In addition, there would be a good case for an award of costs on the basis that it was not expedient for the authority to have issued the notice in the first place.

When granting permission for a two-storey extension to a dwellinghouse with full permitted development rights, is it reasonable to impose a condition to prevent further windows at first floor level in a wall of the original dwelling, as well as the extension? In addition, could the authority refuse the application if the submitted plans show a window in a wall of the original dwelling that would give rise to an undue loss of privacy?

If the new window in the original dwelling is a direct consequence of the proposed extension, in that is needed to compensate for the loss of an existing window, and would result in unacceptable overlooking of adjoining property from a habitable room, in my opinion it would be reasonable to refuse the application.

I also think that a condition to remove permitted development rights to prevent the insertion of such a window in the existing or extended dwelling would be justified, but only where there would be alternative natural lighting. In my view, such a condition would satisfy the relevant tests of Circular 11/95 and in particular the requirement that it should be necessary, reasonable and relevant to the development to be permitted. However, the use of high level windows or those glazed with obscure glass will often be an acceptable alternative.

A standard condition of listed building consent (LBC) requires that new works and works of making good to the retained fabric to be finished to match the "adjacent work". Does this phrase refer to existing works on the subject building or would it include those on an adjacent building?

As far as I am aware the phrase is not defined in case law or appeal decisions. It is not used in PPG15, which includes only limited guidance on conditions in Annex B, or in its predecessor circular 8/87, which set out a range of model conditions. However, for the purposes of applying the provisions of the GPDO 1995, the courts have held that "‘adjacent’ means close to or nearby or lying by: its significance or application in point of distance depends on the circumstances in which the word is used". While this may be evident in most cases, the guidance at Annex C of PPG15 refers to the need for alterations and repairs to listed buildings to respect the existing rather than the adjacent fabric.

Although not subject to the advice of circular 11/95, conditions attached to listed building consents must satisfy the same six tests as those imposed on planning permissions. Thus they should be necessary, relevant, enforceable, precise and reasonable in all other respects. The underlying objective of the standard condition might very well be reasonable. However, it could be argued that the inclusion of the phrase "adjacent work" renders it imprecise as it does not make sufficiently clear whether this relates specifically to the existing building or its immediate neighbour. That could result in difficulties of interpretation and enforcement. In the event of a dispute, therefore, there is a good chance that the condition would be struck down.

My authority is currently considering an application under sec 42 of the Town and Country Planning (Scotland) Act 1997 (which is equivalent to sec 73 of the 1990 Town and Country Planning Act) for the variation of conditions attached to a permission granted in 2001. The permission contains various conditions that may now be obsolete for several reasons, including recent changes to the development plan. Is the authority limited to considering only those conditions for which variation is sought or is it able to look again at all the conditions of the permission?

This provision enables an application to be made for a new permission, removing or varying conditions attached to an existing permission. Regardless of its outcome, the original permission and its conditions will remain intact. When determining such applications, authorities are required to consider only the conditions subject to which planning permission should be granted and they cannot revisit the principle of the development. But they are not prevented from looking again at the wider considerations affecting the original permission and taking a different approach to addressing issues of concern. Thus they may grant permission subject to fresh conditions and in R. v Leicester City Council Ex parte Powergen UK plc [2000] the courts held that these are not restricted to those the subject of the application.

On appeal, however, there is a significant difference. Inspectors are able to strike out the whole permission if suitable new vires conditions which would make the development acceptable cannot be found, but this possibility is not often appreciated.

A standard condition of listed building consent (LBC) requires that new works and works of making good to the retained fabric to be finished to match the "adjacent work". Does this phrase refer to existing works on the subject building or would it include those on an adjacent building?

As far as I am aware the phrase is not defined in case law or appeal decisions. It is not used in PPG15, which includes only limited guidance on conditions in Annex B, or in its predecessor circular 8/87, which set out a range of model conditions. However, for the purposes of applying the provisions of the GPDO 1995, the courts have held that "‘adjacent’ means close to or nearby or lying by: its significance or application in point of distance depends on the circumstances in which the word is used". While this may be evident in most cases, the guidance at Annex C of PPG15 refers to the need for alterations and repairs to listed buildings to respect the existing rather than the adjacent fabric.

Although not subject to the advice of circular 11/95, conditions attached to listed building consents must satisfy the same six tests as those imposed on planning permissions. Thus they should be necessary, relevant, enforceable, precise and reasonable in all other respects. The underlying objective of the standard condition might very well be reasonable. However, it could be argued that the inclusion of the phrase "adjacent work" renders it imprecise as it does not make sufficiently clear whether this relates specifically to the existing building or its immediate neighbour. That could result in difficulties of interpretation and enforcement. In the event of a dispute, therefore, there is a good chance that the condition would be struck down.

Is it lawful to issue a decision notice that includes a condition requiring a sec 106 planning obligation to be submitted to the local planning authority for approval prior to development taking place?

Paragraph 13 of Circular 11/95 makes it clear that permission cannot be granted subject to a condition that the applicant enters into a planning obligation under section 106 of the Act or an agreement under other powers. While circular advice has no statutory force, meaning that an agreement sought by condition is not necessarily unlawful, this approach was upheld in a ministerial decision made in 1987 in relation to similar provisions under sec 52 of the 1971 Act. Nevertheless, there have been a number of appeal decisions where current guidance has not been heeded. These include one from Buckinghamshire in 1989 where a condition required that an agreement be entered into for the provision of car parking within a town centre, and another from Yorkshire in 1991 where a condition required that development should not be commenced until a legal agreement for commuted payments to offset the provision of 83 car spaces had been concluded. In a more recent case from Hampshire (DCS No.50531779), an inspector stated that a situation where an undertaking did not include an affordable housing provider could be remedied by a condition requiring an appropriate agreement with the provider. There is, of course, nothing to prevent a Grampian-type condition being imposed to prevent development commencing or being occupied until certain off-site works, which may be the subject or consequence of a funding agreement, have been completed.

Why does the requirement for planning authorities to give reasons for imposing planning conditions not extend to the Inspectorate or the Deputy Prime Minister?

Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 requires that when an authority grants permission subject to conditions, it must give reasons for the imposition of every condition. Circular 11/95 explains that this is so that developers will be better able to understand the need for the conditions and the need to comply with them. In addition, the likelihood of proper and acceptable conditions being challenged on appeal, resulting in delays to development proposals, will also be diminished. Although neither the inspectorate nor the deputy prime minister is bound by the order or any similar statutory obligation, many inspectors give reasons within the narrative of their decision letters, particularly for the more specific or unusual conditions applied. However, the circumstances of an appeal decision are somewhat different from those of a local authority determination, as in the former procedure most conditions to be applied will have been suggested and discussed by the parties to the case.

Response

If an authority fails to give reasons or to show clearly how a condition should be implemented, does this not invalidate the condition? In a recently dismissed appeal, an inspector gave reasons for an authority’s condition. However, he ignored the fact that the authority had failed to comply with the statutory requirement to give reasons its decision notice, which surely amounts to a serious breach of the regulations? In this case, it would seem that both the authority and the inspectorate were fundamentally at fault.

I am unable to comment specifically on this case. However, the court case Brayhead v Berkshire C. C. 1964 showed that a decision is not necessarily void if there are no reasons, but that an applicant could apply to the courts seeking mandamus, thereby requiring that a local authority performs its statutory duty to give reasons.

With the advent of broadband facilities, would it be reasonable to impose a planning condition requiring that access or connections for broadband facilities be provided at the time of development within each new dwelling or commercial unit. To provide such facilities at the building stage would be much more environmentally acceptable than having to insert at a later date. Could this be achieved under planning legislation?

Such a planning condition would need to satisfy the six tests set out in Circular 11/95. These are that the condition is necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects. There appears to be no precedent or guidance on whether a condition requiring broadband connection facilities would be reasonable. However, while it might be justified to enable connections in areas where broadband is not currently available, especially where necessary to overcome sustainability objections, I cannot see any compelling land-use reason for such a condition where this is already possible.

A contentious and much appealed application for an artist's studio in a conservation area was finally approved by an inspector who imposed a condition requiring the building to "be used as an artist’s studio and for no other purpose". However, the owners have since used it for occasional residential purposes, including letting the property to friends. Following the applicant’s challenge to the commencement of enforcement proceedings, the planning authority now says that such occupation is ancillary to the main use of the property as an artist’s studio and as such falls within the terms of the permission. Do you agree?

It is difficult to comment on this without the full facts. However, the effect of the condition seems clear; its purpose is to restrict the use of the building to an "artist’s studio" only, although whether that term includes any residential use is perhaps arguable. However, in my view, the authority’s stance would only be correct were there no condition to specifically control this matter. In that event, it would be right to maintain that occasional residential occupation is ancillary to the primary use of the building as an artist’s studio and therefore insufficient to trigger a material change in use. A case from Hertsmere in 1996 involving an artist’s studio considered similar issues (DCS No: 3435390).

In 1992 my client's father gained permission for house with a condition that it be occupied by him for 5 years. Work started but stopped when his father died. The property was inherited by my client who 12 years later completed the house for his own occupation. He has now applied for an extension but the authority has queried the original permission. What is the planning status of the house?

It is difficult to comment without knowing the reason for the occupancy condition and its precise wording. I assume that it was imposed in response to an identified local need. Your client’s occupation of the completed dwelling appears to be in breach of the condition and thus unlawful. However, on closer examination it may be that the condition was applied inappropriately and failed the six tests set out at that time in circular 1/85, and now to be found in circular 11/95. In any event, it would be unreasonable for the authority not to vary or remove the condition in the light of current circumstances. But if the intention behind the original permission was to sanction an affordable dwelling, the planning authority may now oppose its enlargement.

Conditions attached to a permission granted in the 1980s for a housing development required the retention of parking provision in perpetuity. This requirement was repeated in the deeds for the dwellings, which also stipulated that parking spaces should not be fenced off or obstructed. However, a householder is now seeking permission to incorporate two adjoining visitors’ spaces within his rear garden, which involves erecting a 2m high fence up to 5m in front of the building line. This would also impede sightlines from the driveway of an adjoining property and, given the open plan nature of the estate, appear visually intrusive. Despite these objections, the authority appears intent on granting permission. What is your opinion?

It is difficult to comment without the full facts. However, since the estate was developed, in an effort to reduce dependence on car travel there has been a fundamental change in the approach to parking provision within housing developments, away from minimum requirements and towards reduced provision. Therefore, when the estate is judged against today’s standards, it could be considered to have an excessive amount of visitors’ parking. In such circumstances, regardless of whether the original condition required all such spaces to be retained in perpetuity, it would be unreasonable in principle for the authority to resist the loss of the spaces in question. Any conflict with the covenants imposed by the developer is not a planning consideration. But the visual impact of the proposed development and its effect on highway safety are relevant factors and in many cases will be decisive where permission is withheld.

Many conservation areas are characterised by substantial roadside hedges in front gardens. These are coming under increasing pressure from householders wishing to provide off-street parking. However, Article 4 Directions cannot be applied to hedges and only trees are protected. Are you aware of any effective way to protect such front hedges?

Hedgerows within residential curtilages are excluded from the Hedgerow Regulations 1997 and their removal does not amount to development or need permission. An opportunity for control arises when permission is sought for a development, which could include a new access. Where this is granted, a condition requiring the retention of remaining boundary hedgerows may be justified where these contribute to visual or residential amenity. Hedge retention conditions may be used to inhibit access to land but a judgement must be made on whether the need for such access outweighs any harmful effect that the gap to be formed would create. But refusing permission for a new access on the grounds of the loss of a hedgerow is clearly difficult given that an applicant would be entitled to remove it in any event.

In 1979 permission was granted for a golf club extension to provide guest bedrooms. A small part of the extension was later built, within the permission’s 5 year lifetime. However, the applicant failed to discharge a condition requiring that details of a landscaping scheme be submitted to and approved in writing by the planning authority. The applicant now wishes to continue building the rest of the hotel accommodation. In view of the non-compliance with the landscaping condition does he still have a valid permission?

Works carried out in contravention of a planning condition of whatever type are a breach of planning control. They cannot therefore constitute a start to development for the purposes of Section 56 of the Town and Country Planning Act 1990 and keep the permission alive. However, in Leisure Great Britain plc v Isle of Wight Council [1999] the courts held that there are four exceptions. These are where:

•    the developer has done everything practicable to meet the condition;

•    approval has subsequently been given so that unauthorised work carried out within the time limits was made lawful;

•    the planning authority has agreed that development could start without complying with the relevant conditions; or

•    the condition had been complied with but the procedural formalities, such as written notification of the planning authority’s approval, had not been completed before work started.

Thus unless one of these exceptions applies in this case, the development will have been unauthorised and the permission will have lapsed. A case from Kent in [I need to get date] [DCS No: 100037938] and another from Bedfordshire earlier this year [DCS No: 56316837] considered similar circumstances. The topic is discussed at 6.341 of Development Control Practice.

A planning condition requires that a housing development shall "seek to achieve" the ‘Secured by Design’ accreditation awarded by a local police force. However, the development cannot comply with the condition as its design concept fundamentally does not meet the relevant requirements. A single item in the Secured by Design recommendations would also cost £100,000 and thus be uneconomic. Does the phrase "seek to achieve" mean that the development need not obtain full accreditation but only include as many of the ‘secured by design’ recommendations as are practicable?.

Secured by Design is an award scheme managed by the Association of Chief Police Officers and promoted locally by force Architectural Liaison Officers. Its aim is to support the principles of 'designing out crime' by use of effective crime prevention and security standards. Safer Places: The Planning System and Crime Prevention 2004 advises that planning conditions may be considered where crime prevention or the fear of crime is material to a proposed development, provided they fulfil the tests set out in DoE Circular 11/95. The document also gives examples of model conditions but these do not include any along the lines you mention which, in my view, does not meet the requirements of the circular. The phrase "seek to achieve" is vague and is thus neither precise nor enforceable. And a requirement to do something which, because of a fundamental feature of the proposed development is unachievable, is clearly unreasonable. You should therefore appeal the condition.

Having lost an appeal against my authority's refusal to grant retrospective permission for a dormer window, a householder now queries the need for permission in the first place. A condition of the permission for the original house states that "no wall, fence or structure of any kind" shall be created without the prior consent of the council. It is my understanding that a dormer window is by definition a "structure". Am I right and would enforcement action now be justified?

This is debatable. The condition does not reflect the wording suggested in the model conditions in Circular 11/95. By failing to expressly remove the right to insert windows conferred by the General Permitted Development Order, it could be held to be imprecise and thus fail the six tests set out in the circular. It might be prudent to try to negotiate a solution. "Structure" is not defined in planning law. However, for the purposes of the Order, a building is defined as including a structure but excluding walls and fences. Since a dormer window is a building operation, it follows that it is a structure. Given this fact and that the inspector found that the window is causing material harm, it could be argued that enforcement action would be expedient if all else has failed.

A decision involved an inspector imposing a condition requiring the applicant to enter into a Sec. 106 agreement. I am aware that some planning authorities are taking this approach to speed up decision-making. But Circular 05/2005 on planning obligations specifically warns against this. What is your view?

The circular repeats the advice in paragraph 13 of Circular 11/95 that permission cannot be granted subject to a condition that the applicant enters into a planning obligation under Sec. 106 of the Town and Country Planning 1990 or an agreement under any other powers. However, circular advice has no statutory force, so such a condition is not necessarily unlawful. In the case you mention (Planning, 21 October 2005, p25 - DCS No: 100038941), the inspector noted that another authority had followed this approach in a recent permission. He agreed that since there was a clear basis for the amount of the financial contribution required, the matter could be dealt with by a Grampian-type condition. He also noted that a suggested form of wording could be found in a respected source - an article in the Journal of Planning and Environmental Law in 2004. This postulated that there was no reason in principle why an appropriately worded condition preventing a development from being implemented until an obligation had been made and approved by the planning authority in respect of specified requirements should fail the legal tests established in Newbury District Council v Secretary of State for the Environment [1981] and explained elsewhere in Government guidance. Because of the conflict with paragraph 13 of Circular 11/95, the article’s author acknowledged that while this form of condition has been used before, it is still somewhat novel and has not been tested in the courts. There is therefore a risk that it would be found unlawful. Until this happens, I see no good reason why authorities should not continue to consider this approach.

Despite submitting samples of the materials for a proposed mixed-used development outside a conservation area, six months later the permission includes a condition requiring that these be submitted to and approved in writing by the local authority before development commences. The authority's design officer is apparently concerned with the upper floors and has requested further information on various matters of detailed design that are not related to the material samples. Given that full permission has already been granted, can he do this? Work has already reached above ground level and the resulting delay is costing my client money. Can he ignore the authority's request and if he does so, can the authority issue a breach of condition notice?

Advice on conditions is given in Circular 11/95. While the authority has already been provided with samples and on the face of it the condition seems unreasonable, presumably the authority is not satisfied that the proposed materials are acceptable. However, unless the condition expressly requires the submission of further details, then this aspect would not be enforceable. As a condition precedent, any breach of this would render the development unlawful and this would need to be remedied by an enforcement notice rather than by a breach of condition notice. I do not think it would be prudent for your client to ignore the condition and a confrontational stance is likely to result in further delay. I would therefore try to negotiate a compromise solution.

Outline permission was granted for eight dwellings on a site in two different ownerships. Outline permission was later granted for four dwellings on part of the site in one ownership. Similar conditions were imposed, although one dealing with landscaping also relates to an area of scrub outside the site but under the applicant's control. If reserved matters approval is sought pursuant to the first permission, could a condition be added to require landscaping of land beyond the site? What would be the status of the original permission should work start on the second scheme?

Circular 11/95 explains that the only conditions that can be imposed when reserved matters are approved are those directly related to those matters. Conditions should not be applied to deal with matters that could not have been reasonably foreseen at the permission stage or that reduce the scope of the permission. In my view, it would not be possible to extend the landscaping requirements at the reserved matters stage to include any land beyond the site. Should the second scheme be built, the original permission will remain intact but it will be necessary to ensure that all its conditions are complied with. If the approved details for the original proposal include elements that are identical to both schemes, their construction will have the effect of keeping both permissions alive.

While my council has approved car-free developments, its parking section continues to issue parking permits to new occupiers. This has resulted in congestion, the very objection raised by opponents of such developments. Talks are taking place over the use of planning agreements or conditions to prevent occupiers from holding or applying for permits. Can such controls be used?

Car-free housing is a relatively new concept based on the more sustainable patterns of urban living promoted in PPG3 and PPG13. It allows higher residential densities and external amenity space to be achieved. It is becoming increasingly common, especially in major cities. Such developments aim to reduce car dependency and will therefore only be appropriate where a site is easily accessed by public transport and is close to local services and facilities. As car-free housing is generally located in controlled parking zones, developers are normally required to enter into a Sec. 106 agreement to prevent occupiers from obtaining on-street parking permits. The use of planning obligations for this purpose has been expressly supported in several decisions, including a call-in case from London in 2002 (DCS No: 32733660). Some inspectors have held that such obligations are unnecessary because a council has ultimate control over issuing permits or because of difficulties over enforcement. However, these views are very much in the minority.

My client owns a pub that was permitted more than 20 years ago subject to a condition restricting opening hours. This has been breached continually. The local authority recently issued a lawful development certificate for the pub’s use during specified hours outside those mentioned in the condition. I argue that this decision confirms that the condition no longer bites and that the pub can lawfully open all hours. However, the authority maintains that it can only open between the hours specified in the certificate. What is your opinion?

It does not follow that if a condition has been breached in part for the full duration of the immunity period it falls completely. In a case from Somerset in 1997 (DCS No: 49728951), an inspector considered an appeal concerning a lawful development certificate and an enforcement notice in respect of a lorry repair garage where a condition restricted working hours to between 8am and 6pm on weekdays and 8am to 1pm on Saturdays and prohibited any Sunday use. While there had been night working on three weekdays and some additional time outside the hours set for Saturdays, there was no evidence to suggest any breach of the Sunday working part of the condition. The inspector refused to accept that a breach of the condition in one particular was sufficient to regard the condition in its entirety as no longer having any effect. He issued a certificate specifying the precise additional hours that could be worked. The authority in your case appears to have followed a similar course. Support for this approach may be taken from the judgment in R ex parte St Anselm Development Company Ltd v First Secretary of State and Westminster City Council [2003], as explained at 4.5352. I agree with the planning authority.

Permission was granted on appeal for a change of use subject to a condition preventing it from commencing until a private road had been improved in accordance with details to be submitted to and approved by the planning authority. It now appears that the appellant might only have owned up to half of the width of the road. The local authority does not have any plan on file relating to the application or subsequent appeal, so it is unknown whether the road fell within the application site. Has the permission been implemented if the condition was complied with, even if the change of use has not yet occurred?

It may be possible to obtain a copy of the approved site plan from the Planning Inspectorate. Sec. 56 of the Town and Country Planning Act 1990 makes it clear that where a development consists of a change of use, it will be taken to have begun once the new use is instituted. However, the section also provides that where development comprises both a change of use and the carrying out of building operations, it will be taken to have begun on the earliest date on which any material operation "comprised in the development" begins to be carried out or the use is commenced, whichever is the sooner. If it can be proven that the road fell within the application site, it could be argued that the effect of the condition was to widen the scope of the proposal to include operational development. So any works carried out within the lifetime of the permission in accordance with approved details may be sufficient to keep it alive. However, complying with the requirements of a Grampian condition for works beyond the site may not have the same effect, if the approach taken in a decision (DCS No: 38039559) in Lincolnshire in 2001 is followed. In that case, the inspector held that off-site highway improvements could not be regarded as "comprised in the development" for the purposes of Sec. 56. I would seek counsel's opinion.

Despite the fact that there is no condition on an outline permission restricting the size of a proposed dwelling, a condition has been imposed on the subsequent approval of reserved matters removing permitted development rights. I argue that this can only be done at the outline stage because the approval of reserved matters is not a permission. However, the local authority disagrees, citing paragraph 45 of Circular 11/95. Who is right?

Paragraph 45 advises that the only conditions that can be imposed when reserved matters are approved are conditions that directly relate to those matters. It explains that where certain aspects of the development are crucial to the decision, conditions should be imposed when outline permission is granted. For example, it may be necessary to require a building to be constructed within a specified footprint. The general rule is that conditions should only be attached at the reserved matters stage to deal with issues that could not reasonably have been foreseen at the outline stage. However, these should not derogate from the principle of the development and the permission already granted. In my experience, it is not always possible to assess the full impact of a proposed dwelling at the outline stage. Where a reserved matters application concerns a relatively large dwelling, I think it is reasonable to consider imposing a condition to take away permitted development rights for its enlargement. However, I accept that there is scope to argue the opposite point of view.

Following a grant of permission, development is clearly unauthorised if a developer starts to construct a building without discharging any pre-condition. Does this also mean that the developer has forfeited his permission? What is the position where a developer, on realising that a scheme is unauthorised, demolishes the building works, restores the land to its original condition and then seeks to discharge pre-conditions?

The general principle is that works carried out in breach of a pre-condition are unlawful. They cannot constitute a start to development for the purposes of Sec. 56 of the Town and Country Planning Act 1990 and keep the permission alive beyond the prescribed time limit. However, the courts have ruled that there are four exceptions:

•    The developer has done everything practicable to meet the condition.

•    Approval has subsequently been given so that unauthorised work carried out within the time limits was made lawful.

•    The authority has agreed that development could start without complying with the relevant conditions.

•    The condition had been complied with but the procedural formalities, such as written notification of the authority's approval, had not been completed before work started.

In this case, if the unauthorised works are demolished and the developer seeks to discharge the pre-conditions before the relevant time limit has expired, this will save the permission.

A condition of a permission for a house extension requires a parking space "of minimum length 4.8m" in the front garden. The applicant's agent confirmed that this was feasible, but it transpires that the garden is just 4.5m deep. If I serve a breach of condition notice requiring a space 4.8m long, the front wall of the house would need to be demolished. Can I under-enforce by serving a notice that requires only a 4.5m long space or is the council bound by the precise terms of the condition?

By virtue of Sec. 187A(2) of the Town and Country Planning Act 1990, a breach of condition notice must "secure compliance" with the condition specified in the notice. The opportunity to specify lesser steps is not available under this procedure. If your authority is willing to accept a shorter parking space, it should negotiate with the occupier and perhaps request an application for the condition to be varied.

My authority has recently dealt with a number of planning applications for new schools submitted by the council's education department. These were dealt with in the usual way and approved with appropriate conditions. However, it has become apparent that a problem would arise in the event of non-compliance. It would be impossible for the authority to enforce a condition because, in effect, it would have to take action against itself. Does this lack of enforceability mean that such conditions fail the tests in Circular 11/95 and are invalid? If so, is there any point in adding any conditions to the council's own planning permissions?

Annex 1 to Circular 19/92 explains the Town and Country Planning General Regulations 1992. Paragraph 8 makes clear that Sec. 70 of the Town and Country Planning Act 1990, which includes the power to impose conditions, applies without modification to local authorities' own applications. So conditions imposed on planning permissions granted under either regulation 3, where the land is to be developed by the council, or regulation 4, which deals with building projects to be developed by others, are lawful. Clearly, your concerns would not arise in the case of the latter. But where land is developed by the council, it is to be expected that any concerns over enforceability and perceived conflict with policy guidance in Circular 11/95 are merely of academic interest.

An inspector recently granted permission for a development subject to a Grampian condition requiring access improvements. This will involve land whose owner is opposed to the development and who made it clear at the public inquiry that there were no circumstances under which the required land could be sold to the developer. I had always understood that Government advice is that such conditions can only be imposed where there is a reasonable prospect that their requirements can be met within the life of the permission. Am I wrong?

Paragraph 40 of Circular 11/95 states that it is the "policy" of the secretaries of state that such conditions should only be imposed on a permission if there are at least reasonable prospects of the action in question being performed within the time limit imposed by the permission. However, the policy guidance does not mean that where such a prospect does not exist a negatively worded condition is unlawful, as established in British Railways Board v Secretary of State for the Environment [1994]. This House of Lords judgment is referred to in an end note to paragraph 40 of the circular. In Merritt v Secretary of State for the Environment [2000], the court held that the policy test in the circular is not mandatory. The decision-maker is still required to exercise discretion and to consider whether, irrespective of circular guidance, the imposition of such a condition would cause material harm.

I received a telephone call from the officer dealing with my application for a house extension requesting that it be reduced in size. However, before negotiations could take place permission was granted with a condition requiring that amended plans be submitted and approved showing the extension reduced in size by a specified amount. Is this acceptable?

Circular 11/95 explains that a condition modifying development cannot be imposed if it would make the development substantially different from that proposed by the applicant. Whether a modification would amount to a substantial difference will depend on the circumstances of the case. But the circular points out that a useful test is whether it would so change the proposal that those interested in it would wish to comment on the modification. It is not normal practice for proposed house extensions to be altered in this way. It could be argued that the condition is unreasonable because it takes away much of the benefit of the permission. You may therefore wish to consider an appeal.

Have there been any queries relating to age discrimination legislation and conditions limiting occupancy by reference to age?

While age restriction conditions are commonly applied to retirement housing schemes, it is sometimes argued that they are not readily enforceable and thus conflict with advice in Circular 11/95. However, such conditions are normally found to be reasonable where they serve a clear planning purpose, for example, in cases where a reduced amount of parking is proposed. I am not aware of any decision where it has been argued that they breach the Age Discrimination Act 2006.

I recall being told that under-enforcement is not possible with a breach of condition notice (BCN). Although a close reading of the legislation appears to support this interpretation, I can find no relevant case law. Does it follow that where only Part of a condition has been breached, for example an element of a mission statement, the notice must seek to enforce the entire condition rather than just the element concerned? Where a Grampian condition is involved, must the notice require reversion to the pre-existing situation, effectively rendering the use of the power unreasonable?

In accordance with Sec. 187A(2) of the Town and Country Planning Act 1990, a BCN must "secure compliance" with the condition specified in the notice. Therefore the opportunity to under-enforce and specify lesser steps to be taken is not available where compliance would result in something that falls short of what the condition seeks to achieve. But since a BCN must specify the steps that the authority considers ought to be taken to secure compliance, or the activities that the authority thinks ought to cease, all that it need do is to frame the notice with regard to that element of the condition that has been breached. As a Grampian condition is a "condition precedent", any development carried out without complying with its terms will be unauthorised in its entirety. Rather than serve a BCN, the authority should consider whether it would be expedient to issue an enforcement notice that is directed against the whole development.

Casebook has recently reported decisions where inspectors have deleted conditions requiring the submission of a planning obligation or payment of financial contributions to the authority. Does this mean these conditions are ultra vires and should no longer be imposed?

Circulars 11/95 and 05/2005 explain that it is not Government "policy" to sanction conditions that require developers to make financial contributions or enter into a planning obligation. As you say, inspectors have struck down such conditions in several decisions taken recently. However, this does not mean that these conditions are unlawful. A test case that should clarify this is currently before the High Court. In the meantime, there is a strong body of opinion that favours the use of Grampian conditions to achieve a similar end, as evidenced by their growing use by many authorities. Advice in the Government's good practice guide on planning obligations suggests that authorities can use Grampian conditions in this way, so long as they are careful and the conditions are precisely worded. This is reinforced by a best practice note issued by the Planning Officers Society in March 2005 and prepared by a group that included representatives from the Government and the Planning Inspectorate. The practice note outlines a limited range of appropriate circumstances where Grampian conditions may be used as a prelude to obligations being entered into. The aim here is to enable an application to be determined but prevent implementation of the permission until such time as an obligation has been put in place. Suggested model conditions are set out in the note.

Following the recent question and answer in Forum (Planning 1734) relating to the scope of hours of construction conditions, my authority has attached such a condition to a development. It requires that construction work shall not take place at any time other than between the hours of 0730 and 1730 Monday to Friday. Building work has commenced and occasionally deliveries arrive at the site earlier than 0730 and have to wait in a residential road. Does this breach the condition? DV.

As the condition refers only to "construction work" it cannot be reasonably stretched to control the situation you describe. While it may have been possible to devise a condition which included reference to hours of delivery into the site, serious questions of validity would arise if its requirements were outside the control of the developer. The early arrival of supplier’s vehicles, and their legitimate parking off-site until the site was operative, is hardly a circumstance over which any construction company would have any direct influence, save if it was using its own vehicles. The only resolution of this particular problem is for your council to ask the builders to advise their suppliers not to seek to deliver before 0730. GH.

Recently, when we have discovered that bats are using a barn which is proposed to be converted, our ecologists have requested a condition requiring that the development shall not commence until a European Protected Species licence has been issued and a copy of the license submitted to the Local Planning Authority. My understanding is that conditions requiring compliance with other regulatory schemes are ultra vires. I wonder whether such conditions would comply with the requirements of Circular 11/95? NH.

My council’s ecological advisers are currently recommending conditions for pre-determination or post-determination surveys for bats. While I recognise that  bats are a protected species and that there are regulations to require them to be dealt with properly, surely this is covered by separate legislation and do not need to be the concern of the local authority? MH.

Generally, it is possible for local planning authorities to impose requirements or controls ostensibly falling within the aegis of other law, if it there is sufficient doubt as to its effectiveness in regulating a problem with implications for planning control. In terms of bat protection, it is a criminal offence under the Wild Life and Countryside Act 1981 and the Habitats Regulations, to kill, injure or take a bat, or to disturb bat roosts. However, policing these powers is only as effective as manpower/information resources allow. A licensing system administered by Natural England for DEFRA may allow certain closely justified activities involving bats

The planning system is, of course, closely involved with general matters of nature conservation through designations and policies contained in development plans, as set out in Biodiversity guidance PPS9.  The role of the development control process is explained in more detail in accompanying Circular 06/2005. This states that the presence of a protected species is a material consideration when considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat. It advises that local authorities should consult Natural England before granting permission, and should consider imposing an appropriate condition or  requiring planning obligation, under which a developer would take steps to secure the long term protection of the species. The Circular notes that it is essential that the presence of protected species is known before planning permission is granted, but that developers should not be asked to carry out surveys unless there is reasonable likelihood of the species being present.

It follows that local authorities may legitimately require a bat survey before permission is granted for the re-use of roof spaces or the removal of buildings, if they are reasonably certain that bats are present, or have been present. As a result of what is found, they may impose conditions which would mitigate any harm. However, it is of practice interest that in an appeal case from Swindon (DCS Number 100-038-798) involving the demolition of a barn, a condition was imposed requiring the later approval of an ecological survey, including any necessary mitigation measures. It was reasoned that this condition need not refer to the fact that a DEFRA licence might need to be obtained for any possible relocation, as this was a statutory requirement under powers other than planning. GH.

Response

The Conservation (Natural Habitats, &c.) Regulations 1994 states that "….every competent local authority in the exercise of any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."  Bats are listed in this Directive as a species which require a "System of Strict Protection". Judgments in the European Court of Justice indicate that merely saying that the presence of a protected species is a material consideration is unlikely to satisfy the legal requirements for such a system of strict protection. Therefore a local planning authority’s authorisation cannot be given which causes significant damage to an EU protected species if present. This could only be determined by the prior commissioning of a bat survey by qualified and experienced bat workers. A condition which requires later approval of an ecological survey is contrary to the principles of the House of Lords judgment in R v London Borough of Bromley ex parte Barker [2006] which showed that a ‘competent authority’ must be in possession of the full facts before an authorisation is made. In the light of a system of strict protection it could be prudent for a planning decision to consider the likelihood of a licence being issued, and it could be a reason for refusal if a licence was not obtained c.f.  R on the Application of Newsum v Welsh Assembly Government [2004]. I am concerned that planning officers could be misled by the outdated Circular guidance and the appeal decision quoted in GH’s response. SA.

A client purchased a long established restaurant and applied for a small side extension for about 30 extra covers. This was granted but with a condition that the restaurant could not operate takeaway sales. It is now proposed to operate as a restaurant with an additional takeaway service and a refusal to allow this has been appealed. We are arguing on the basis of Circular 11/95 paragraphs 24 and 25 that the condition does not fairly or reasonably relate to the development permitted. Do you know of any relevant precedent? HM.

It is not unusual for local authorities to apply conditions to proposals for extensions to existing uses, but relating to the whole of the operation. The aim in so doing is normally to extend regulatory control over perceived harmful aspects of established activities. As you say Circular 11/95 strictures against such opportunist practices where not justified by the actual development being considered. However, the advice also recognises that there could be situations where such would be the resultant on-site intensity of development that restrictive conditions would have to be applied to the whole site or operation for a proposal to be acceptable. For instance in Penwith District Council v Secretary of State for the Environment [1977] an extension to a factory was proposed and a condition relating to the control of dust and fumes from the whole factory was imposed. Here it was rationalised that the condition was not ultra vires as the extension enabled the whole of the existing factory to work for 24 hours a day. The only appeal case from the catering field that I can identify is the one you mention as being already in your possession. Here a condition has been applied to an extension to a hotel which prohibited all outdoor functions. An inspector felt that the condition did not relate to the development the subject of the relevant planning permission and denied rights that previously existed. It had been wrongly imposed and was removed (DCS Number 100-046-037). GH.

Is it generally accepted that any other conditions which are still relevant need to be re-imposed when permission is given under section 73 to remove an existing condition?  My question arises out of how prior conditions are to be reapplied, where the development has already been commenced. For instance, it would be ridiculous to impose a condition which requires the submission and approval of a landscaping scheme prior to the commencement. Using this example could the new decision notice be tailored to the current situation and refer back to the landscaping scheme already submitted and approved, and require its implementation? PL.

If a condition is removed or altered using section 73 of the Town and Country Planning Act 1990, the good practice approach was articulated by the judge in Reid v Secretary of State for Transport, Local Government and the Regions [2002}. Here, it was observed that it was highly desirable that when issuing a fresh planning permission under section 73 that all the conditions to which the new permission will be subject should be restated.

This procedure creates two planning permissions, the original remaining extant, as confirmed by Circular 11/95. However, in R. v Leicester City Council Ex parte Powergen UK plc [2000] it was stated that where there is "an application to carry out development without complying with one condition, the authority can impose a different new condition or a number of new conditions and/or remove another condition subject to which the earlier permission was granted." Consequently, it may lie within a planning authority’s power to take the opportunity to regularize existing dated conditions. Provisos suggested by other case law are that the effect of so doing would not compromise the permission itself, bring in fresh planning considerations or render existing conditions more onerous. Your suggestion for an amendment to a landscaping scheme condition perhaps needs to be examined in that context. GH.

I am involved with a small environmental organization concerned about plans to develop a heavily polluted site, where pollutants have already started leaking out. Applications to develop the land have not made it clear how this would be effectively remedied. The local planning committee have agreed to grant outline permission, but has left its officers to decide what conditions should be attached. Is this a proper procedure for a complicated and controversial application? JP.

It is quite common practice for officers to be delegated the authority to formulate appropriate detailed conditions after approval of a development by committee. In the case you describe I assume that this course of action was the result of a formal resolution, based on an officer’s report which would have already indicated the areas of concern that conditions should cover were the development to be approved. I do not see how this procedure could be challenged as improper, if done transparently. However, if council members became aware of public concern about the nature of any conditions which may be imposed by officers, they do have the power to recover the matter before a decision letter has been issued. GH.

Planning permission was granted for a barn conversion to two dwellings. The application site incorporated a sprawl of modern farm buildings indicated by a red edge. Within this, the area of the modern buildings was outlined in green with the notation ‘open pasture (not garden)’ and another area tight around the building to be converted was colour coded purple to show the curtilage. A condition was imposed stating that the green area was to be restored to open pasture, including the removal of existing structures, before either of the dwellings were occupied. However, one occupier has produced evidence that the land was returned to pasture before occupation. As there was no perpetuity element to the condition, he is claiming that the green land can now be used as domestic curtilage because it falls with the red line. Can you advice what enforcement action can be taken, if any, to return the green area to pasture? TY.

It would seem that the condition applied by your authority has been fulfilled. Therefore it would not be possible to instigate enforcement directed against its future breach. This leaves the possibility that an enforcement notice could allege a departure from approved plans. Certainly the plan you describe makes it patently clear that the ‘green’ land was not to be used as domestic curtilage. Should an appeal result an important factor assisting your council’s case would be if a further condition had been applied to the permission requiring conformity with submitted plans, or whether the description of the development permitted in the decision notice itself embodied such a constraint. GH

With reference to the government’s Code for Sustainable Homes I am finding that many local planning authorities are imposing conditions insisting that development cannot proceed until a certificate demonstrating compliance with a certain Code level (usually 3). I have an appeal decision (DCS number 100-054-256) where an inspector noted that there was no development plan policy justification for such a condition. He added that compliance with the code was currently voluntary and that imposition via a planning condition was not reasonable or necessary, and concluded that reliance should be placed on there Building Regulations to deal with this matter. However, this case was complicated by the fact that the proposal involved both conversion and new-build. My opinion is that it is not an appropriate planning condition with regard to circular advice. DW.

From the beginning of May it has been mandatory for a Code Sustainability Certificate to be included in the Home Information Pack as information for prospective purchasers of all new property marketed in England. The matters tested include water efficiency, surface water management, waste and refuse management and the use of materials. Dwellings are rated on a six level basis, where 6 is the highest, although a nil certificate may be submitted. At present all housing built by social landlords has to be built to level 3 of the Code and in 2010 the Building Regulations are proposed to be amended so that in order to be given a completion certificate all new houses will have to be built at no less than level 3.  I know that, as you say, some authorities presently impose planning conditions requiring conformity with at least level 3  However, as such a condition has a tenuous relationship to conventional planning land use and environmental concerns I feel that it would fail the relevancy test set out in conditions Circular 11/95. In any case from 2010 the requirement will be deliverable through another regulatory code and at that time will conclusively not be a proper subject for a planning condition. GH.

Response

My authority has policies in its development plan and an SPG which requires all new development to be carried out to meet level 3 of the Code.  We have been attaching conditions to planning permissions since the SPG was adopted and have also had a number of appeals where the Inspector has also attached the condition.  I do however appreciate the point that you make and look forward to this matter becoming part of the building regulations. PJ.

I have submitted details to a planning authority to discharge a condition on a full planning permission and have received the response there is no charge this time, but in future the council will require a fee to confirm the details satisfactorily discharge the condition. This seems to be a misinterpretation of the regulations – do you agree? DB.

This new provision seems to be causing problems as this is not the only Forum question to be received on this issue. Since 1 April such submissions have been subject to a charge, £25 for householder developments and £85 for all others; so the charge is not a misinterpretation of the legislation. The procedures are explained in paragraphs 123 to 131 of circular 04/2008. Surprisingly, the circular suggests councils might apply this provision flexibly, but no reason for this is given. I hope this provision does not result in planning authorities imposing extra conditions requiring subsequent detail approvals to earn fee income. Conversely, developers may attempt to minimise fees by either submitting more details "up front" with the planning application or submitting their details for a proposal together in one package. JH.

If a planning permission for a class A3, A4 or A5 food and drink use includes a condition requiring details of associated extraction and filtration systems to be submitted, approved and implemented before the use is commenced, would a separate planning application be required where this involves operational development? This would enable third parties to comment. Are there any cases relating to this scenario? DR.

There are no nationally prescribed procedures or guidance relating to the discharge of planning conditions. Practice among authorities varies. Some have their own procedures that require the completion of forms and discretionary consultation with third parties. Others allow requests to be made by letter. Officers usually have delegated authority to determine such applications, although those relating to large or controversial developments may be reported to members. But even where a planning condition requires the submission of details of operational development to be approved, it seems perverse that these would need to be the subject of a fresh application and a new fee. If the proposed odour control system is likely to affect neighbouring residents' amenity, there is no reason why the authority should not consult them before deciding whether to discharge the planning condition. I can find no relevant appeal decision. PM.

Response

It is a basic principle that if a planning condition requires some further development to be carried out beyond that sought in the application, then no further express planning permission is needed to authorise those additional works. In the case cited by DR, since the condition apparently includes a requirement that the flue installation be "implemented", that is all the formal planning permission required. PL.

Further Response

While there is no basis in statute or policy guidance for this view, I agree that it is reasonable. PM.

Permission for a block of flats was granted subject to a condition stipulating that "no development shall take place until the applicant or developer has secured the implementation of a programme of archaeological work in accordance with a written scheme of investigation which has been submitted to and approved by the local planning authority". The condition was not discharged and the flats have been built. Consequently, valuable archaeological material has been lost. My authority is considering enforcement action but is unsure of the steps it should require to remedy the breach in control. What is your advice?

Bearing in mind the approach taken in R (Hart Aggregates) v Hartlepool Borough Council [2005], the condition appears to be a true condition precedent since it expressly prevents development from being commenced until specified works have been carried out. Failure to discharge the condition has therefore rendered the entire development unlawful. The only enforcement action the authority can consider is the service of an enforcement notice. But the courts have held that such action should not be taken where it would be irrational to do so. In accordance with human rights legislation, issues of proportionality and hardship are also relevant. If, as you say, the archaeological material has already been lost, it may serve no practical planning purpose to require the completed building to be demolished to enable investigations to be carried out. The authority could have taken action sooner. Although it is perverse that the developers should benefit from their unlawful actions, I think that you should now consider requesting an application under section 73A of the Town and Country Planning Act 1990 for the retention of the building without compliance with the condition.

Further to JM's query on the building of a block of flats in breach of a condition precedent (Planning, 23 March, p27), the reference in the last paragraph of my reply should have been to section 73A and not to section 73. PM.

My authority is reviewing conditions to control noise from fume extraction ducts on catering uses. Environmental health officers have suggested an approach whereby noise levels should not exceed the ambient noise level or only by a certain amount. They cite several authorities that are adopting such a practice. My concern is that circumstances could result in ambient noise levels dropping, for example if traffic management involves the closure of a nearby road. Such a condition might then not be viewed as reasonable. What is your opinion?

Guidance on planning and noise is set out in PPG24. This supplements the general advice and model noise conditions in Circular 11/95. Annex 5 of the guidance highlights the difficulties in setting relative limits based on the permitted increase in noise level above a background level. Such an approach is used in BS4142: 1990. However, problems may arise from variations in background noise during the day and occasional transient high noise levels from the site. The guidance suggests that it is necessary to prescribe limits by reference to LAeq T values. It adds that in some cases setting an additional overriding overall maximum level may be difficult to enforce. Of course, if the authority does not specify a value for the background noise level, such a condition would be imprecise and unenforceable and would therefore be contrary to the advice in Circular 11/95.

Permission was granted for a housing estate subject to a condition requiring an area of open space to be provided. The developer erected one dwelling under this permission but subsequently built other houses under separate permissions, none of which required open space. He now wishes to complete the estate but has been told by the authority to provide open space commensurate with the whole development and not just the remaining area to be developed. Given the advice in paragraphs 24 and 25 of Circular 11/95, do you agree that the authority's requirement appears unreasonable? PS.

The advice you mention deals with the relevance of conditions to the development to be permitted. It says that unless a condition fairly and reasonably relates to the development permitted, it will be ultra vires. A number of examples are given but these do not relate to the provision of open space. If the original permission for the estate is still extant and the developer is seeking to rely on it to authorise completion of the development, then he must comply with its conditions. The incremental development of an estate pursuant to a series of individual permissions is highly unusual unless it is carried out in the context of some agreed overall plan. If the developer is seeking a new permission relating only to the undeveloped area, this could be perceived as a tactic for avoiding open space provision. However, the authority may have difficulty in applying a new condition that requires more open space than is directly related to the needs of the remaining houses, unless it can be justified by reference to a relevant development plan policy or other document such as an approved masterplan. PM.

The approved drawings for a housing scheme clearly indicate the proposed external materials, which include reconstituted stone. These are also described on the application form. The permission includes a standard condition requiring details of external finishes and samples to be approved by the authority before commencement. During discussions over the discharge of the condition, a planning officer said that only natural stone would be accepted and that the materials detailed in the application are irrelevant. Is he right?

It is not unusual for this type of condition to be applied even where the materials have been specified in the application. When wording such a condition, it is good practice to make it clear that the authority has not approved the external finishes described in the application. Alternatively, it may be appropriate for a condition to expressly require a certain material to be used, such as natural stone. But regardless of whether it explicitly says so, the effect of the condition will be to override the details of the materials set out in the application.

While the Planning and Compulsory Purchase Act 2004 cut the life of planning permissions to three years, this amendment to the time limit prescribed by section 91 of the Town and Country Planning Act 1990 does not appear to have been extended to prior approvals. Does the limit for these remain five years? Circular 08/05 suggests that it is three. But is an authority able to impose a longer time limit under section 91(1)(b) of the 1990 Act, as implied in the circular? SJ.

Section 91(4)(a) of the 1990 Act makes it clear that nothing in it applies to any permission granted by a development Order, which would include those granted by the General Permitted Development Order 1995. Parts 6 and 24, schedule 2 of the Order require a local authority's prior approval of specified details of agricultural and telecommunications developments in certain circumstances. But giving prior approval is similar to a reserved matters approval. It is not a grant of permission and merely amounts to the discharge of a condition of the permission granted by the Order. Other conditions in parts 6 and 24 prescribe the time limit for implementing the approved development. Until such time as the Order is amended, this remains five years. An authority has no discretion to alter this time limit other than through a local development Order. The guidance in the circular does not apply to the permission granted by a development Order. PM.

A local authority regularly attaches planning conditions to restrict construction hours, dust emissions, the siting of contractors' plant, machinery, materials and vehicles and sometimes construction traffic routes. I understood this practice is inconsistent with advice in Circular 11/95 and possibly also unlawful. What is your advice? PD.

Circular 11/95 is silent on the use of conditions limiting construction Activities. However, it does explain that they are not an appropriate means of controlling the right of passage over public highways. The general rule is that conditions should not seek to control matters that are the proper concern of other statutory agencies, such as those responsible for environmental health, except where planning interests are clear and the safeguards available to other bodies are insufficient to protect such interests. Nevertheless, conditions restricting construction hours are commonly applied by local authorities and have been imposed by inspectors, particularly in decisions on large developments. Much depends on the nature of access to the development site and the effect of construction Activity on adjoining residents. PM.

We have recently received planning permission for 16 B1 units varying from 500 to 1500 sq ft.  A condition states ‘The premises shall not be used other than for the purposes defined in Class B1 of the Town and Country Planning (Use Classes) Order 1987 as amended by the Town and Country Planning Use Classes (Amendment) Order 2005.’.  This seems to be simply stating the use applied for and does not seem to be withdrawing our permitted development rights.  Given that the General Permitted Development Order allows a change of use to B8 if under 235 sq m, it seems reasonable that individual units could be changed to B8 if the need arises.  Do you agree? IG.

No, the wording of the condition used is typical of that which authorities impose when they wish to prevent changes of use to another use class which otherwise might be permitted development. JH.

On appeal an outline application for a bungalow or chalet bungalow was approved subject to a condition, "Not more than one dwelling shall be erected on the site and that dwelling shall be of a single storey design". Prospective purchasers of the site are unclear whether a chalet bungalow would be acceptable. The inspectorate is unwilling to comment on the issue except to say the determination of the condition’s meaning is for the planning authority. The council has advised a prospective purchaser they would only accept a bungalow on the site. What does the term "chalet bungalow" mean and how should this permission be interpreted? DW.

I have always understood "chalet bungalow" to mean a bungalow with accommodation in the roof and the glossary in Development Control Practice and Wikipedia confirm that definition. I have looked at the appeal decision you refer to. The inspector does not consider whether the dwelling should be one- or two-storeyed in his decision. For this reason and as the terms of the permission are unclear, legal challenge might have been an option but the deadline for that has now passed. The only way forward now to achieve certainty would seem to be to submit another outline application for a chalet bungalow and see if you get permission from the council or on appeal. JH.

Response

I was interested to read JH’s reference to the definition in ‘Wikipedia’ in the advice.  I have always understood the Concise Oxford English Dictionary (COED) to be the reference source in the circumstances described.  I realise I may be behind the times but wonder whether Wikipedia has been recognised by the courts and has now supplanted the COED as the planners’ reference of choice? DW.

Further Response

"Chalet bungalow" was not defined in my COED, hence use of Wikipedia and also, of course, Development Control Practice. I am not aware of any court cases where Wikipedia has been cited, but maybe readers know otherwise. JH.

Further Response

In response to DW’s request for the definition of a ‘chalet bungalow’, you asked readers if they were aware of any court cases in which Wikipedia has been cited. Wikipedia relies on contributions submitted from users of the website, and anyone can freely edit definitions. I cited Wikipedia as a reference for an essay during my MSc in Planning, for which the tutor roundly slated me for using an unreliable and untrustworthy source. It is unlikely, therefore, that any court would attach much weight to Wikipedia as a source of evidence. MW

Can the three year time period for an outline planning permission be extended, where it is apparent that due to the large size of the development proposed, for example 1000+ housing units, as it will take significantly longer to deliver a number of reserved matters applications for each of the development phases?  Often planning authorities are keen to ensure that urban extensions are comprehensively planned through the submissions of one outline application.  However, from a delivery perspective, as a landowner, such developments usually in a buoyant market take 5-15 years to fully develop working with developers, by which time a comprehensive outline will have lapsed. CB

I presume your enquiry relates to the situation where outline planning permission is being first granted. Section 92 of the Town and Country Planning Act 1990 (as amended) does give authorities power to vary the three-year period and the circumstances you describe seem appropriate in which to use such flexibility. JH.

An outline application covers a 29ha site. The site has been endorsed for development by the council's Planning Committee and is nearing resolution in terms of S106 negotiations. A proposed condition requires archaeological investigations. The developers are keen to carry out these works before the decision notice is issued, due to the extent of work required and time for completion. The works will involve excavation of large areas of the site, some by mechanical digger, and will result in earth mounding for the removed material. I would not normally consider archaeological works to constitute development (and they would be defined out of the meaning for the purposes of the S106) but in this case, given the scale of works, can they be considered development such that they should not commence until the formal permission is issued? TW.

If excavations, say, to remove a mineral or construct a swimming pool constitute development, it could similarly be argued that archaeological excavations are also development. In most cases where such excavations are carried out, however, the land is returned to its original condition, whereas in the comparisons I cite there is a permanent physical change; the removal of the mineral and the formation of a swimming pool. Where archaeological excavations result in a permanent change to land, e.g. lowering ground levels to expose building foundations, then normally planning permission would be required, but if such changes do not take place, a decision has to be made on the extent of the works as a matter of fact and degree. Even if you decide that the archaeological excavations proposed constitute development, given the circumstances of the case where presumably all parties agree the work is beneficial, if the work is carried out before permission is granted, it seems unlikely enforcement would be expedient. JH.

The conditions the Planning Officers Society and the planning inspectorate recently produced included one on affordable housing. Clearly imposing conditions relating to affordable housing could improve our performance in terms of 8/13 week targets. Some colleagues are sceptical whether imposing conditions would adequately deal with affordable housing. Have authorities who already use them experienced any problems and will others who have not previously used them now do so? If conditions are acceptable for affordable housing, could they be used for open space provision and financial contributions? Any thoughts/comments/experiences would be welcome. DS.

The recently published condition on affordable housing seems to meet the circular 11/95 tests. As it has a form of official endorsement, it would be reasonable to use it. Section 4.43 of Development Control Practice considers whether conditions requiring a planning obligation can be used and the wording of such a condition from a 2005 appeal decision is quoted (DCP reference: 100-038-941). Circulars 11/95 and 5/05, however, both proscribe this practice and, in view of this advice, I would not recommend using such conditions. I have little direct experience of the use of affordable housing conditions, however, but perhaps other readers can comment on their experiences. JH.

Many planning permissions issued by this authority before 1995 removed permitted development rights for dwellings using conditions referring to the General Permitted Development Order 1988 as amended. They did not include reference to any subsequent order revoking and re-enacting with or without modification, as set out in the model conditions in Circular 11/95. Are such conditions enforceable now? JC.

Such conditions normally comprise a qualifying clause beginning, "Notwithstanding the provisions of" or similar, followed by a requirement such as, "No extensions shall be added to the proposed dwelling unless planning permission is obtained for them". If the qualifying clause were to be deleted altogether, the sentence would still make sense and the condition would be enforceable. Thus, I would suggest, even if the reference to subsequent orders is omitted, the condition would still "bite". JH.

We submitted a number of details to comply with conditions on a planning permission in one submission, attracting the £85 fee. One detail was not acceptable and the authority has refused the whole submission so the applicant has to start again. Do you consider refusing everything unreasonable? IE.

The practice of reserving matters such as landscaping and material samples for subsequent approval has grown up over the years and, whilst it is fully legal, there is little direct reference to it in planning legislation. There is therefore no statutory framework which indicates whether split decisions can be issued, but I would consider it reasonable to do so. Presumably the council has advised which submission is unacceptable and why, so a further application hopefully will be successful. As there are no "free goes" for these, a further £85 will be payable. There is, however, the inconvenience of having to reassemble the whole submission and possible extra postage and plan printing. JH. 

On a corner site in a conservation area the planning application approved drawings for a new dwelling show continuous enclosure along one road boundary. The means of enclosure were reserved for approval by condition and a scheme for a wall with a gate has now been approved along this boundary. The road and verge are privately owned with public access. Because no access is shown on the approved drawings but a gate is shown on the approval under the condition, is the latter approval a nullity? What remedy is open to the road owner to prevent the gate being built or achieve its removal if built? GH

I doubt a legal challenge to the approval under the condition would be successful as, once the house was occupied, a gate could be inserted along the frontage as permitted development (a private road would presumably not be classified). Thus, even if judge considered the approval contrary to law, quashing the decision would be pointless. To prevent a gate being inserted or to require its removal if built, the road owner would be best relying on their ownership rights. JH.

We are dealing with a prior approval submission for siting and design details of an agricultural building under class A of part 6 of the General Permitted Development Order 1995. We told the agent that the building should be lowered for us to be able to give approval. He has replied that the applicant is unwilling to lower it but will incorporate a screen planting scheme into the submission of details. This would overcome our objection to height. Our concern, however, is there is no mechanism to enforce against failure to provide such planting or ensure its retention.

We have received legal advice that we only have powers approve or not approve submitted details and not impose conditions. Furthermore, the Encyclopaedia of Planning Law and Practice (paragraph 3B-2110.3) says, ‘The Order (does not) confer powers to impose conditions on approval it is merely a power to approve or not approve the details submitted by the applicant’. Whilst an acceptable landscaping scheme could be submitted, normally we would impose timetabling and aftercare conditions. Have you any guidance on how we can take this forward? DE.

Paragraph E22 of Annex E of Planning Policy Guidance Note Number 7, which is still in force although the rest of the Note is superseded, states, "Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given. (DOE Circular 11/95 gives further advice in this respect.)".  Furthermore, conditions requiring a landscaping scheme and its subsequent maintenance have been imposed in one instance where there has been a prior approval notification for an agricultural building in Cheshire (DCP Number: 045-813-887). On the other hand, as you point out, there is no power to impose conditions on such approvals expressly given in the Order as the Encyclopaedia confirms.

An analogous situation is submissions for phone mast, etc prior approvals under class A of part 24 of the Order, as amended. In my experience, conditions are similarly often placed on such approvals both when being granted by planning authorities and on appeal, although there is likewise no power given in the Order to do so. Government policy and practice would thus appear to support the use of conditions for these approvals. Nevertheless, if a High Court challenge were made to such conditions, it is possible that they would be held to be unlawful. If conditions are imposed, it would seem they should relate to issues of siting and design, not say an issue like highway safety. In the circumstances you describe, I consider a landscaping condition would be appropriate. JH.

A developer has applied for permission for a fire escape window onto a neighbour’s land. I am concerned the window could result in overlooking. Whilst a condition could be imposed requiring obscure glazing, because of its function it would be impossible to prevent it from being opened. Can you help? MC.

To overcome the problem of the window being opened, a condition could be imposed requiring it to be fitted with a glass bolt mechanism. JH.

A first-floor nightclub above a separate ground-floor bar was destroyed by fire and what was left was demolished so now the first-floor slab is effectively the building roof. A month before the fire the nightclub was changed to a lap dancing club. An application has been submitted to rebuild the nightclub. As the first floor has been completely removed, could the council consider the principle of having a night club in this location as the use rights have been lost? Can the Council impose a condition to prevent the night club being used as a lap-dancing club? SK.

Issues relating to replacing fire-damaged structures are considered in section 4.325 of Development Control Practice. Applying the principles of lddenden v Hampshire County Council (1972), if a building is destroyed its use rights are lost and there is no right to reinstate it. Having said that, your authority could if it wished give weight to the fact that the nightclub was lost as the result of misfortune and grant permission for its rebuilding even if that might not normally be granted in this location. Regarding the possibility of imposing a condition preventing use as a lap-dancing club, as lap dancing is controlled by the Licensing Act 2003 such a condition would be most unlikely to be supported on appeal as circular 11/95 advises against conditions which duplicate other controls. However, other conditions to control amenity impacts, such as operating hours and soundproofing could be imposed. JH.

Planning Policy Guidance Note 2 restricts dwelling extensions in the green belt to protect its openness, but last year’s General Permitted Development Order Amendment allows substantial additional extensions, after an application for extension has been allowed, so a property could be vastly over-extended. In an appeal decision in Staffordshire that has come to my attention (DCS No 100-064-270), an inspector accepted the need to remove permitted development rights by condition when allowing an extension to a green belt dwelling. In that case, removing the rights was supported by supplementary planning guidance, but the issue is a national one. Although circular 11/95 says that permitted development rights should only be removed exceptionally, do you think a similar condition to the Staffordshire case could be used as a matter of course? MK.

In my experience inspectors are willing to accept conditions removing permitted development rights if there are good reasons for imposing them and they only remove appropriate rights. For instance, in the appeal you quote, the inspector varied the original condition so it only took away rights for extensions and outbuildings, but not other rights. Each case needs to be considered on its own merits. To take an obvious example, if permission is just sought for a porch, it would be inappropriate to take away permitted development rights. In the case you cite, however, the extensions which resulted in the council imposing a condition taking away permitted development rights increased the size of the dwelling by 24% If removing conditions is supported by development plan policy (any such policy should specify the particular types of circumstances in which it would be applied), this of course means an inspector would be more likely to accept it. JH.

A section 73 application to vary a condition on a planning permission results in a new permission with the "offending" condition removed/varied as appropriate. All the other conditions remain the same as the original permission. What is the position regarding conditions on the original permission which have already been discharged? I recall there was a case which established that in such situations the same conditions on the new permission are also deemed discharged. Is this correct? Do you know the name of the case? SA.

A successful application to amend conditions results what is in effect a new planning permission, but does not cancel the old one. This was confirmed in the judgment Powergen United Kingdom plc v Leicester City and Safeway Stores plc 19/5/2000 which indicated that while section 73 applications are commonly referred to as applications to amend the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and unamended. It was stated that this was so whether the decision was to grant planning permission unconditionally or subject to different conditions. JH.

In the new Welsh Technical Advice Note No. 5. "Nature Conservation and Planning" two suggested types of condition seem to have ignored best practice as expounded in Circular 35/95 (11/95 in England). Paragraph 4.6.4 refers to the submission and "agreement" of landscaping schemes. Section 78(1)(b) of the Town and Country Planning Act, 1990 does allow appeals against a failure to give "agreement", but best practice, and ordinary English usage, suggest "approval" is a better word.

Paragraph 6.2.2 suggests authorities may "…impose a condition preventing the development from proceeding without the prior acquisition of a licence under the appropriate wildlife legislation." If the developer and the planning authority have followed the guidance’s advice before permission is granted, getting a licence to disturb protected species should be straightforward. Paragraph 22 of the circular on the use of planning conditions advises: "A condition which duplicates the effect of other controls will normally be unnecessary…"  There are many activities which can disturb protected wildlife which do not involve development.  What is your view? Have any of your readers found these conditions useful in practice? JB.

In relation to your first query, whilst I would agree "approval" seems a slightly better word in this context "approval" and "agreement" are broadly synonymous, so I would not be unduly concerned about the use of "agreement". Regarding your second query, I too have reservations whether a condition duplicating another control is really necessary in these circumstances. From my experience of development control, however, I find it often useful to adopt a "belt and braces" approach and imposing such a condition will not cause any harm. Furthermore, if such a condition is challenged on appeal, given the Assembly advice, it would seem unlikely an inspector would delete it.

JB asks if other readers have found conditions preventing development until a licence to disturb protected species useful. If any readers, Welsh or otherwise, can respond to this, we would be interested to hear from them. JH.

Response

Given that Natural England urges consultants to refrain from making applications and endeavour instead to avoid committing offences, a condition requiring a licence may represent an appropriate application of the precautionary principle and in my opinion would be entirely acceptable under Planning Policy Statement 23 and the Welsh equivalent. Also, the planning authority should consider what scope there is in the application to provide positive enhancement of the nature conservation value of the site. PS.

Planning permission is given for a change of use of a building, in this case to a library. Part 21 of the application form includes reference to proposed operating hours. I would argue that the approval is based on those hours and they are therefore implicit in the permission. Colleagues argue that, if the hours are not the subject of a condition, then there is no control over hours. Who is correct? DV.    

You are wrong. A limitation on a permission cannot be enforced as a condition unless it is imposed as such. In the case of I’m Your Man Ltd v Secretary of State for the Environment (1999), permission was granted for a use specified in the description as being for a temporary period, but no condition to this effect was imposed and it was held the permission was a permanent one. JH.

When granting a renewal application under s73 of the Town and Country Planning Act 1990 is it necessary to include all previous conditions, including those that have already been discharged?  If discharging conditions previously agreed would be necessary this seems costly in terms of time to the planning authority and the applicant.  GB.

Circular 02/08 makes clear that a renewal permission is a new one, so previous condition cannot be relied upon. Having said that, as you indicate, it would be unreasonable where, say, external materials have been approved to require a further submission. Conversely, however, the applicant might wish to substitute alternative materials. Thus, I would recommend wording such a condition to allow the previously approved materials to be used or such alternatives as might subsequently be approved. Paragraph 30 of "Greater Flexibility for Planning Permissions" indicates different conditions can be imposed on a renewal application. JH. 

My landlord has converted a semi into a house and two flats. Three years ago the landlord decided he no longer wanted to pay to maintain a screen that gave privacy to my flat and removed it. I have checked the original planning permission, granted in 1990, and it includes the condition, "Within two months of the date of this permission, a 1.8m high obscure glazed screen of a design and materials to be approved by the local planning authority shall be erected along the north-east staircase hereby permitted." Can anything be done about this? HR.

The wording of the condition is not satisfactory. Unless the application was retrospective, it should not have specified that the screen should have been erected within two months as the development might not have been implemented until much later. Even if the application was retrospective, however, the condition was not appropriately worded. It required the approval of the screen beforehand and does not allow for the eventuality that an unsatisfactory scheme is submitted and not approved by the council for whatever reason. Thus, the developer could have found himself in breach of the condition but unable to comply with it as no scheme was approved. The case Payne v National Assembly for Wales and Caerphilly County Borough Council 2006 demonstrates the problems that arose when an inspector on appeal attempted to impose a similar condition.

Of more significance to you is another unsatisfactory aspect of the condition’s wording; though it required a screen to be erected, it did not require it to be retained. Thus, your landlord has not breached planning control by removing the screen. You could complain to the council that the condition was unsatisfactorily worded, but the fact that you have let this issue lie for a long time could count against you. You would not be able to complain to the ombudsman as they will normally only investigate issues you have become aware of within the last year. JH.

All conditions on a planning permission have been discharged except one relating to visibility splays.  Their dimensions have been negotiated with the authority and they meet the specification they requested.  The authority now requests an Appropriate Assessment for the local River Special Area of Conservation (SAC).  Its official stance is that where proposals are within the SAC designation, as the competent authority under the EC Habitats Directive (Council Directive 92/43/EEC) it has to prepare an Appropriate Assessment to assess the impact on the site’s integrity. They now claim they cannot discharge the condition for the foreseeable future because Natural England and the Environment Agency cannot agree if the proposed dwelling would be detrimental to the SAC.  Can you help? TA.

The Conservation (Natural Habitats, &c.) Regulations 1994 put into effect the EC Habitats Directive. It requires that where a proposal is likely to have a significant effect on a European site this should be considered before planning permission is granted. If this is not done when it should have, the remedy is not to hold back condition details approval which have no significant habitat implications, but rather to revoke the permission. The way to take this forward would be to appeal or make a formal complaint to the council (or both), though this might, of course, precipitate the revocation of the permission. JH.

Response

It is the planning authority which must make the appropriate assessment. If the Environment Agency and Natural England cannot agree, it is open for the planning authority to determine to adopt the opinion of one, and provided it records its reasons for doing so, it should be unchallengeable – compare R (ex parte Akester and Melanaphy) v Department of Food, Agriculture and Rural Affairs and Wightlink Limited 2010. In domestic law, to refuse to approve particulars of visibility splays when these are agreed with the highway authority would arguably be an abuse of power, and the authority would have extreme difficulty in justifying any action in relation to breach of the condition if the splay is constructed as agreed. It is not clear from the information supplied whether the visibility splay could be a true condition precedent – see R (ex parte Hart Aggregates) v. Hartlepool District Council [2005] as applied in Bedford Borough Council v the Secretary of State for Communities and Local Government and Alexander Stanislaw [2008]). In either event, the authority could not hope to achieve an injunction against building the dwelling itself, and I believe that a robust approach to the authority is possible even without providing to it a draft appropriate assessment which it can adopt to determine that there is no likely significant effect on the integrity of the special area of conservation. PS

A client secured permission on appeal for a dwelling. Two conditions requiring pre-commencement approvals for materials and landscaping were imposed. In February he applied to discharge these conditions, but the authority has not determined the application. Although it has never indicated the details are unacceptable it says that because a sewage works (not the one the dwelling would drain to) is producing an unacceptable discharge which is affecting protected species in the local river (A site of special scientific interest and a special area of conservation) it is necessary to carry out an appropriate assessment under the Habitats Directive. It has not done the assessment nor does it appear it intends to. I can understand why this may be the case with a new application where the principle of development has not been determined but I do not accept this matter’s relationship with pre-commencement conditions with no relevance to foul drainage matters. A lot of development in the catchment area at reserved matter or discharge of condition stage is similarly being delayed. I would value your views on this extremely unusual case. BW.

A similar scenario was raised by TA (see Planning 7 May p21 and 28 May p21). BW informs me that the authority’s action is based on a counsel’s opinion which suggests approval under the EC Habitats Directive is akin the environmental impact assessment and should be carried out at both outline and approval of details stage. It then goes on to suggest that approving details under conditions is also an approval for Directive purposes. In responding to TA I indicated the remedy for the authority is not to hold back approval of condition details which have no significant habitat implications, but rather to revoke the permission. The way to take this forward would be to appeal or make a formal complaint to the council (or both).  Even having seen the counsel’s opinion, I am not sure I can add much to this advice. Whilst ultimately issues like this would be for the courts to determine and this issue could, of course, go to the European courts, the authority’s position does seem very illogical. In your case the proposed house is in a different sewage work’s catchment area which makes the authority’s position even more difficult to understand unless there is a linkage between the two works. JH. 

Response

The authority’s action appears to be based on this development possibly affecting the special area of conservation’s integrity together with the discharge from the waste water treatment works upstream. In the absence of any specific requirement against the applicant for approval under the conditions, it is the authority’s duty to undertake the appropriate assessment where one is necessary, and I consider failure to undertake this where the authority has determined it is necessary could be subject to judicial review. I would suggest requisitioning the screening assessment under the Environmental Information Regulations 2004.

An alternative might be to apply to remove the conditions under section 73 of the Town and Country Planning Act 1990, given there is no objection in substance.

The substance of the objection would be addressed by amending the details approved in relation to foul drainage by treating the discharge from the new property to a standard which could then be supported by an ecological report showing it as being incapable of affecting the extent to which the European site is affected by the sewage discharge.

It is interesting that this is a case of a state body relying on a breach of a European legal obligation by another state body to give fraternal support to a third state body to give direct effect to European law against a private individual where there is no scope to do it in domestic law. PS.

Thank you for your comments. Given the authority’s stated position, I think it unlikely they would approve a s73 application to remove the relevant conditions.

An application has been submitted for four garages at the end of an unadopted cul-de-sac. The applicant indicates he wishes to sell the garages to local residents. An inspector previously refused permission for two dwellings on the land as the cul-de-sac was unsuitable for additional traffic. Our highway officers consider the garages would only be acceptable if they are to be used by the cul-de-sac residents. Is it possible to use a planning condition or a planning obligation to ensure the garages are only used by the cul-de-sac residents? CB.

Circular 05/05 on planning obligations advises, "It may be possible to make acceptable development proposals which might otherwise be unacceptable, through the use of planning conditions or, where this is not possible, through planning obligations" and this seems a classic example of such a scenario. Although circulars 11/95 and 05/05 prefer the use of conditions rather than planning obligations wherever possible, in these circumstances I would recommend an obligation as it could prove difficult to draft a suitable enforceable condition, an obligation is more appropriate if land ownership is being controlled and the nature of what is being controlled could make it difficult to detect unauthorised use such that 10-year immunity might be obtained. JH.

Recent legislation enabled applicants to extend the time limit for an extant permission by renewing it. As this was introduced by statutory instrument (secondary legislation) it cannot usurp s73(5) of the Town and Country Planning Act 1990 (primary legislation).The changes sought need to be introduced by alterations pursued through Parliament primary legislation. Therefore as the law currently stands neither planning authorities nor the inspectorate can deal with 'renewal' applications. Do you agree? JH.

You are right that secondary legislation cannot override primary legislation and normally parliamentary draughtsmen take great care to avoid legislation conflicting in such ways. s51 of the Planning and Compulsory Purchase Act 2004 modified s73 of the 1990 Act to prevent its use for renewing planning permissions, so in this instance there is the necessary primary legislation. JH

We are dealing with a listed building application to dismantle a building, with a subsequent planning application for housing on the site. The relocation site already has planning permission for the reconstruction of the building. It is in third party ownership. We are struggling to identify a mechanism to require the reconstruction of the building and have ruled out a planning agreement as the relocation is not dependant on the housing development. There are also concerns that an agreement between the developer and relocation site owner will not suffice as this could be varied or terminated and would not be within authority control. Any help would be appreciated. SE.

I would consider a s106 agreement would be possible as, if the listed building is not satisfactorily relocated there would presumably be strong planning objections to the residential development going ahead. Circular 05/05, however, favours conditions to agreements whenever possible. A condition could be imposed on the listed building consent requiring that demolition should not start until evidence of a contract has been submitted and accepted (a similar mechanism is frequently used to avoid a vacant site being left when conservation area consent is granted for demolition). Alternatively, a "Grampian" type condition preventing the residential development starting or reaching a certain stage until the building has been rebuilt could be used. Another point to bear in mind is that when the building is rebuilt, it would only be protected as a listed building if it is "re-listed".

My authority approved a nightclub in the 1990s. There is no hours of operation condition. Our enforcement team considers the hours of operation are dictated by what was on the application form (1900-0100). I consider there is effectively no hours restriction and any implications of late opening should regulated by environmental health or licensing. Who is correct? DR.

You are right. In the case of I’m Your Man Ltd v Secretary of State for the Environment (1999), permission was granted for a use specified in the description as being for a temporary period, but no condition to this effect was imposed and it was held the permission was a permanent one. An interesting recent appeal decision where these issues were explored is DCS no 100-068-145.  Here an Essex authority unsuccessfully tried to argue that the description of a retail unit as a do-it-yourself store precluded other A1 uses. JH.

Planning permission to extend a semi-detached house was granted subject to a condition specifying the external finishes should "match in colour and texture those used in the existing building".  The house is not in a conservation area or similar.  The pair is finished in pebbledash render.  Surrounding properties have been finished in a mixture of smooth render and pebble dash, with some pairs finished in one of each.  The applicants want to finish their whole property in smooth render which would result in one of the pair being smooth rendered and the other maintaining a pebbledash finish, but the condition would prevent this. If the applicant were to remove his pebbledash render and change it to smooth render as permitted development  and also use smooth render on the extension, would he be in breach of the condition? MR.

The condition refers to matching the existing house and that would reasonably be interpreted as being the house as it existed when the planning permission was granted, so technically there would be a breach of planning control. Having said this, however, if there are other "half and half" houses in the vicinity, especially if it is not a conservation area or similar, it may well not be expedient to enforce against such a breach of planning control. JH


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