Legal Viewpoint: Need for clarity in conditions flagged

Developers often seek flexibility in drafting planning conditions, but a recent case in which The Highland Council and a landowner challenged a decision by Scottish ministers to allow an appeal for an energy-from-waste plant should sound a note of caution for decision-makers.

Anthony McNamee
Anthony McNamee

After two inquiries, the plant was granted permission subject to a key condition requiring waste to come from pre-treatment areas within the council’s boundary, but acknowledging the possibility that a proportion of feedstock might come from further afield. The application and environmental impact assessment (EIA) were based on the assumption that the plant would only treat waste that originated within the council area.

The council’s position was that the condition was invalid because receipt of waste from outside its area had not been assessed for the purposes of the Environmental Impact Assessment Regulations 2011. In addition, it said the Scottish Government’s and the council’s own approach to waste management would mean a reduction in waste being sent to the plant over time, forcing the operator to seek waste from outside the Highland area.

The Court of Session could not fault the principle on which the condition had been based. It agreed that the approach of accepting waste from outside the council’s area was logical in the wider Scottish waste policy context, where the proximity principle for waste treatment has been relaxed to allow a Scotland-wide approach. However, the challenge was upheld and the condition found invalid. Fundamentally, the court ruled that the condition enlarged the scope of the permission beyond what was applied for and what had been considered at the inquiries. In addition, it was held to be essential to the planning permission and so could not be severed.

The ruling is a reminder that, while planning conditions can be severed, the entire permission must be quashed where the invalid condition goes to the root of the permission. This is based on the view in British Airports Authority v Secretary of State for Scotland [1979] that permission might not have been granted at all if it "had been appreciated that the condition objected to could not properly be attached to it".

The inquiry will now be reopened and the court has made clear that it need only deal with the condition in question, rather than rehear the entire case. However, it has also acknowledged that if the condition is found essential to the grant of permission, further submissions from the parties on its merits will also need to be heard. The key lesson here for decision-makers and applicants is to ensure that the drafting of conditions is in line with issues that have been considered in the application, assessed within an EIA and, where relevant, dealt with at inquiry.

Anthony McNamee is a solicitor at Bond Dickinson

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