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Making planning conditions great again!

Checklist 2 146x219Jonathan Darby examines the law surrounding planning conditions, which has been consolidated over the past couple of years.

Far from being satisfied with turning international relations on its head, Donald Trump’s influence now extends into the construction and interpretation of planning conditions. Further developments to the law as it relates to conditions are also eagerly awaited pursuant to Regulations made under the Neighbourhood Planning Act.

Although in broad terms, a long line of authorities indicates that the power to impose conditions is not unfettered. In this regard, the speeches in the House of Lords in Newbury have long been considered to provide a clear framework for assessing the validity of conditions, which i) must be imposed for a “planning” purpose and not for any ulterior purpose; ii) must fairly and reasonably relate to the development permitted by the planning permission; and iii) should not be so unreasonable that no reasonable planning authority could have imposed it.

The courts have also developed a number of principles for construing conditions, including – notably for the purpose of what follows – a strict approach to the use of extrinsic material and a clear indication that there is little room for conditions to be implied in a planning permission.

However, this approach was refined somewhat by the Supreme Court in Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74, in which the following test was unanimously approved:

“When the court is concerned with the interpretation of words in a condition in a public document ... it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.”

As to the extent to which extrinsic material can be used in the interpretation of a permission, Lord Hodge held that:

“Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent”.

Perhaps more of a departure from previous authorities was the Supreme Court’s clear relaxation of the principle against the implication of conditions in a planning permission.

Although Mr Justice Cranston subsequently sought to distinguish Trump International in Eatherley v Camden LBC [2016] EWHC 3108 (Admin) (a GPDO case), by suggesting that permissions under the Order were not to be interpreted in accordance with Trump International because that case concerned permissions granted by planning authorities, not permissions laid down by statutory instrument, in Dunnett Investments Ltd v SSCLG [2016] EWHC 534 Patterson J applied the principles set out in Trump International as follows.

(i) Conditions need to be construed in the context of the permission as a whole;

(ii) Conditions should be construed in a common sense way;

(iii) Conditions should not be construed narrowly or strictly;

(iv) There is no reason to exclude an implied condition;

(v) Conditions are to be construed objectively;

(vi) Conditions should be clearly and expressly imposed;

(vii) Conditions are to be construed in conjunction with the reason for its imposition.

The Court of Appeal then agreed that the starting point for interpretation of planning conditions was Trump International, by the same stroke confirming that yes, with appropriate caution, words can be implied into conditions.

Any current discussion of conditions would be incomplete without reference to the Neighbourhood Planning Act 2017, which includes restrictions on powers to impose planning conditions, including the use of pre-commencement conditions.

The Explanatory memorandum states as follows:

“Planning conditions

4 The Act introduces a power for the Secretary of State to make regulations which prescribe the circumstances where certain conditions may or may not be imposed and descriptions of such conditions for the purpose of ensuring that conditions meet national policy tests in the National Planning Policy Framework.

5 Pre-commencement conditions are planning conditions which prevent any development authorised by a planning permission from taking place until the condition has been formally discharged, for example, the condition may require the approval of detailed aspects of the development. The Act ensures that pre-commencement planning conditions are only used by local planning authorities where they have the written agreement of the applicant, subject to any exemptions that the Secretary of State may prescribe in regulations.

6 It is intended that the process of agreeing pre-commencement conditions before a decision is issued should become a routine part of the dialogue between the applicant and the local planning authority, building on current best practice. In the event that an applicant refuses to accept a necessary pre-commencement condition proposed by a local planning authority, the authority can refuse planning permission. This will maintain appropriate protections for important matters such as heritage, the natural environment, green spaces, and measures to mitigate the risk of flooding.”

Crucially, the 6 tests in Paragraph 206 of the NPPF (i.e. planning conditions must be: i) necessary; ii) relevant to planning; iii) relevant to the development; iv) enforceable; v) precise; vi) reasonable) are now set out on a statutory basis. Moreover, pre-commencement conditions will now be required to be agreed with an applicant before they are imposed. Although already advised as being ‘best practice’ by the NPPG (as a means of increasing the certainty of what is proposed and how it is to be controlled, including highlighting any condition requirements that may impact on the implementation of the development), this provides significant scope for strategic negotiations between applicant and local authority.

Now who would have thought that an article that started with Trump would end with a comment on the benefits of collaborative working?

Jonathan Darby is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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