#3230 - Planning Conditions And Obligations

Commercial Property

Planning Conditions and Planning Obligations

Planning Conditions imposed by LPA

S.72(1) TCPA – gives power to LPA to attach conditions to the grant of planning permission
Purpose: To regulate the development / use of land
LPA follows government guidance = Circular 11/95 [contains model conditions]
Circular sets out 6 criteria that conditions must satisfy:

1	Necessary Condition duplicates the effect of other controls [e.g. tree preservation; pollution controls]
2	Relevant to planning R v Hillingdon - condition was not a planning purpose. “priority for those on council housing waiting list”. Test of need: condition should be tailored to tackle a specific problem
3	Relevant to the development to be permitted E.g. ultra vires to require people on local authority’s housing waiting list to get priority
4	Enforceable Not occupied by students – not easily enforceable!
5	Precise is the condition poorly drafted. E.g. submit a plan – but does not say what happens after that! Is it unlikely that LPA can require scheme to be implemented Clarity
6	Reasonable in all other respects Not unduly restrictive Avoidance of onerous requirements e.g. severe limitation on the freedom of owners to dispose of their property. [Para 36 circular] Conditions depending on the action of others [Para 38 Circular]

Case law = Newbury District Council v SEE = key case saying conditions should always be:

For the planning purpose [R v Hillingdon – council housing case] Fairly and reasonably related to the development Not manifestly unreasonable

Article 31 DMPO 2010 = insists that every condition must be explained / have justification and that must be given to the applicant

Appealing the conditions:

Client will want to avoid a total re-hearing of the planning application, which could result in the original grant of planning permission being reversed altogether.
It is possible to make an application to develop without complying with the conditions already imposed [because applicant wants to query them]. This will enable the applicant to pick off the conditions he queries and not jeopardize the whole planning permission.

S.73 TCPA: development has not started – i.e. the condition has not yet been breached. Make application in writing BEFORE previous planning permission has expired. The LPA will either:
- Grant unconditional permission
- Grant permission subject to different conditions; or
- Refuse the application
S.73A TCPA: development has already started. If the application is successful the permission will apply retrospectively making any past breaches lawful.

Planning Obligations

S.106 TCPA 1990 [commonly known as 106 Order / Agreement]
Client can secure a planning obligation BEFORE planning permission is granted so that the LPA can ensure the obligation is enforceable against the land [not just the individual].
Purpose:

To make planning application acceptable to the LPA. LPA has more freedom – there are less restrictions compared to setting conditions Cannot be appealed [however – they can be reviewed]

Soon to be replaced = Community Infrastructure Levy [Planning Act 2008]
Formalities = Deed or unilateral undertaking / identifies all relevant parties concerned / Registered as a charge = burden runs with the land
Persons having an interested in the land can enter into a P.O [not including a developer with merely a option to purchase]

What should obligations achieve:

Potential obligations:

Restrict development / use of land in some way
Require specific operations or activities to be carried out [e.g. remediation or clean up of the contaminated site particularly if part residential; recycling obligations]
Require land to be used in specific way [e.g. A proportion of affordable housing]
Require money to be paid to LPA [e.g. contribute to road network, traffic schemes – because of additional vehicles, public transport to avoid reliance on cars]

Enforcement of a obligation:

LPA policy

Examples:

Also:

1	Merits based decision. Does obligation fall into line with the development plan and other material considerations Development plan will specify benefits to be provided by way of planning obligations. Planning obligations will prescribe requirements of the plan
2	A condition is more preferable than a obligation [paragraph 7 circular 11/95] Developer has a right to appeal to Sec of State regarding the imposition of a condition
3	General principle: Planning permission may not be bought or sold
4	P.Os are intended to make acceptable development which would otherwise be unacceptable in planning terms.
5	Securing a P.O should not be done for the purposes of securing for the local community a share in the profits of development
6	Obligations must be directly related to the proposed development that the development ought not to be permitted without them. [e.g. functional or geographical link
7	Obligation must be reasonably related in scale and kind to the proposed development
8	Possible uses of obligations: where development creates a need for a particular facility that is relevant to planning offset through substitution, replacement, or regeneration the loss / damage caused by the development ...

#3230 - Planning Conditions And Obligations - Commercial Property