Council penalised for unreasonable open space condition

An inspector has approved two new houses in a Cheshire town without complying with a condition to provide and maintain formal recreation and children’s play space as he held the condition was both imprecise and unreasonable and contrary to the council’s own adopted guidance. He awarded full costs against the council in a separate costs appeal.

The council had granted planning permission for the two new homes subject to a condition requiring that a scheme for the provision and maintenance of formal recreation and children’s play space and facilities be submitted and approved prior to occupation of the first dwelling. The inspector considered whether the condition met the six tests set out in paragraph 55 of the NPPF.

The inspector considered at the outset that as the council had imposed the condition in complete contradiction of its own adopted local plan policy and, albeit recently adopted, supplementary planning guidance on the issue and had not notified the appellant that it was going to impose the condition, then not only was the condition imprecise and unreasonable but the council had acted unreasonably as well. This was because the condition did not expressly require that a planning obligation be entered into, what form any provision should take or what the appellant had to do to meet the council requirements. The inspector did not accept the council’s arguments that PPG allowed for negatively worded conditions in exceptional circumstances, finding that none were advanced by the council. Nor did he accept the condition could be satisfied other than through a planning obligation. On the latter point the inspector opined that it was unreasonable and disproportionate, in a scheme for two dwellings, to require the appellant to procure their own area of public open space or to independently seek to enhance existing facilities and then to carry out maintenance thereafter. Finally, as there had been no discussions between the council and appellant about open space provision, the inspector held it was not possible to establish whether the open space was indeed justified in this instance. This was because the council’s own SPD stated that contributions will only be required where they would secure provision in a location close to and easily accessible from the new development and where it would be of direct benefit to its occupiers. A matter the inspector stated he had insufficient information on because discussions about provision had not taken place.

In awarding full costs against the council, the inspector held they had acted unreasonably in not discussing the open space provision with the appellant with a view to agreeing a planning obligation for such, and imposing an unreasonable and imprecise condition in conflict with their own and NPPF advice. 

Inspector: Graham Wraight; Written representations

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