Planning Conditions

Question 1

How did you rank the planning conditions in terms of risk?

Answer 1

Ranked the conditions high, medium and low depending on whether they would cause a delay to Clarion receiving the affordable units from Cala as set out in the programme.

When deciding on the ranking I considered:

1. The status of the condition in terms of discharge
2. When the condition had to be discharged by (pre-occupation, pre-commencement of works above ground level, pre-occupation, post occupation monitoring and discharging)
3. The nature of the condition - complex or relatively standard condition and whether there were are third parties who would be required to be involved in discharging the condition.

I presented my presented my ratings of the conditions to the Partnerships director and advised to proceed with the deal.

Can you give some examples of the ranking of the conditions:

Most of the conditions had been discharged, hence they did not present a risk

There were three pre-occupation conditions which included providing a travel plan, plan demonstrating how installation of EVCP and the provision of secure cycle facilities. Given that these were not required to be discharged until pre-occupation and Cala were not yet onsite with construction works and these were relatively standard conditions I deemed these relatively low risk.

There were 3 pre-commencement conditions which the LPA had confirmed via email that they were acceptable and a decision to follow. These conditions included:
- details of surface water sewerage disposal
- topography plans and cross sectional drawings
- lighting scheme

Whilst the LPA had confirmed these were acceptable via email they still had not been formally discharged. I discussed with Cala and they were expecting the decision imminently, therefore I advised these low risk as the exchange was not due to take place for a further 4 weeks so it was likely these would be discharged prior to exchange.

Medium risk

-3 pre-commencement above ground level conditions

1. details of refuse stores
2. details on how the scheme has been designed to reduce energy demands
3. details of materials to be used externally

All submitted not yet approved - pre-commencement above ground level
Cala confirmed they had discussed at pre-app and council were supportive
Technical team reviewed

High risk

1 outstanding pre-commencement condition, which was the construction management plan which was submitted but yet to be approved. Whilst this presented a greater risk as it was a pre-commencement condition and it had been submitted and validated for several weeks and was waiting approval.

Whilst this was a risk as it was not approved, it didn’t require further input from third parties and was a relatively standard condition that had been validated for a significant period of time. Advised that the exchange should proceed as still 3 months out from sos. Development agreement covered programme delays via LADS

Question 2

Tell me a time where you have reviewed planning conditions?

Answer 2

I worked in the Partnerships team to secure 50 affordable homes from Cala Homes.

Prior to exchange I reviewed the planning conditions associated with the planning permission to determine which had been fully discharged and which were still outstanding, predominately focusing on the pre-commencement conditions.

I liaised with Cala Homes on the status of conditions yet to be discharged and rated them low, medium and high in terms of potential risk.

I presented this to the Partnerships Director and advised that the outstanding conditions did not present a major risk to the deal and to proceed towards exchange of contracts.

Question 3

Can you give me some examples of the planning conditions attached to the application?

Answer 3

The site was granted outline planning permission, subject to compliance with 29 planning conditions these included:

1. Details and drawings

Approval of details of:
- the layout and appearance of the development
- the landscaping of the site,
- and the scale of the development (hereinafter called the “reserved matters”) shall be obtained
from the LPA (no approval)

2. Standard time limit condition for commencement of the development

Application for approval of the RM shall be made to the LPA before the expiration of 3 years from outline permission (S92(2) of the T&CPA 1990) however this can be shorter or longer depending on LPA. Lower Haysden it was 2 years.

Development to have begun either before the expiration of 3 years from the date of the outline permission, or before the expiration of 2 years from the date of approval of the last of the RM to be approved, whichever is the later. (S92(2) of the T&CPA 1990)

RM to be in general conformity of the DAS in the outline and plans (illustrative landscape masterplan, proposed access) in the outline (Locality and approved development principles)

3. Pre-commencement conditions

No development shall commence until a CEMP detailing management of surrounding habitats in each phase in provided and restricting access to key ecological areas. (safeguard species and protected biodiversity in the local area)

Arrangements for the management of all construction works
- days of the week / hours of construction works will be limited to and
measures to adhered to
- managing all traffic movements associated with the construction works
- parking of contractor’s vehicles within or around the site during construction and storage of external vehicles (order to minimise harm/disruption to the
amenities of local residents)

Details of the proposed means of foul and surface water sewerage disposal have been submitted to, and approved in writing by, the LPA. Development will be undertaken in accordance with the approved details

Details of surface water sewage disposal

Topography plans and drawings

4. Pre commencement above ground level
   Approval of the type of materials to be used
   Details of refuse stores
   Details of how a scheme has been designed to reduce energy demands
5. Pre-occupation conditions

Submission and approval in writing by the LPA of a travel Plan, to reduce
dependency on the private car. To include objectives and modal-split targets, a programme of implementation and provision for monitoring, review and improvement. (reduce depedency on private travel and interest of highways safety)

Submission and approval by LPA of detailed scheme to install EVCP. Work to be carried out prior to occupation (encourage use of EV and reduce vehicle emissions in the interest of air quality - NPPF Paragraph 112)

details of a scheme to install electric vehicle
charging points within the development has been submitted to and approved by the Local Planning
Authority. The work shall be carried out in strict accordance with those details prior to the
occupation of any of the dwellings within the site

Provision of secure cycle storage facilities

Note: A reason is given to each condition

Question 4

What are planning conditions?

Answer 4

1. Often applied to the grant of planning permission.
2. LIMIT and CONTROL the way in which planning permission is IMPLEMENTED.
3. Aim to enhance the the QUALITY of development and ENABLE development to proceed where it would have otherwise been refused as planning conditions MITIGATE the adverse effects.

Question 5

Can you give me an example of some high risk planning conditions?

Answer 5

An LPA may require a bat emergent survey to take place as part of a pre-commencement condition which can only take place for certain times of the year (May to September)

If archeological works are required to be done pre-commencement, then delays to programme are out of the developers control as it is hard to know what is underground until excavation begins

Question 6

What section of the NPPF covers the tests for planning conditions and what are they?

Answer 6

Paragraph 56 (NPPF):

1. Planning conditions need to be kept to a minimum
   They must only be imposed where they are
2. Necessary
3. Relevant to planning and development to be permitted
4. Enforceable
5. Precise
6. Reasonable in all other aspects

Any pre-commencement conditions should be avoided unless there is clear justification

Question 7

What paragraph of the NPPF covers the tests for planning conditions?

Answer 7

NPPF paragraph 56

Question 8

How can the LPA and applicant reduce the need for planning conditions?

Answer 8

1. Rigorous application of the tests
2. Early engagement
3. Pre-application meetings
4. Planning performance agreement - timescales for discussions to take place
5. Seek approval at application stage for matters which may otherwise have been subject to conditions

Question 9

When should planning conditions not be used?

Answer 9

1. Conditions that do not meet the planning conditions tests
2. Conditions that would cause unreasonable impact on the delivery of a development (unjustifiable and large financial burden) - fail test 3
3. Conditions requiring compliance with regulatory requirements such as Building Regulations
4. Conditions reserving outline application details which have already been submitted with the outline application
5. Conditions requiring the development to be carried out in its entirety
6. Conditions requiring land to be given up

Question 10

What is a Grampian Condition?

Answer 10

prohibits development authorized by the planning permission or aspects linked to the permission until a specified action has been taken

Question 11

Can planning conditions be used to modify plans and details submitted within an application?

Answer 11

If detail / lack of detail is unacceptable in planning terms , best course of action is to revise the application. If it involves significant changes, may need a new application.

Question 12

How should local planning authorities order conditions on decision notices?

Answer 12

Precise drafting and clear conditions will help ensure they are understood.
Good practice to list in the order the need to be satisficed. A good structure is:
1. Standard time limit condition for commencement of development
2. Details and drawings subject to which the planning permission is granted
3. Pre-commencement conditions
4. Pre-occupation conditions
5. Any conditions related to post occupancy monitoring and management

Question 13

How should conditions be used to specify the time limit within which a development granted planning permission should begin?

Answer 13

Development must being not later than the expiration of:
1. Three years beginning from the date the permission is granted
2. Another period (longer or shorter) that the LPA imposes

Longer - complex, large-scale project, 3 years to SoS is not enough time
Shorter - so housing development is implemented in a timely manner

Question 14

What conditions can be attached to reserved matters applications?

Answer 14

Only those directly related to those reserved matters. Any conditions other than the matters to be reserved can only be imposed when outline permission is granted.

Question 15

How long should a RMA be made once outline planning permission has been granted?

Answer 15

Before the expiry of two years from the date of the permission

Question 16

What would happen if development is carried out without complying to a pre-commencement condition?

Answer 16

It would be deemed unlawful and maybe subject to enforcement action

Question 17

When must a local planning authority agree pre-commencement conditions with an applicant before imposing them?

Answer 17

Planning permission for the development of land may not be granted subject to a pre-commencement condition without the WRITTEN AGREEMENT of the applicant to the terms of the condition (except in the case of a condition imposed on the grant of outline planning permission S92 of T&CPA 1990 or in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018).

Question 18

What are the key pieces of legislation that relate to planning conditions?

Answer 18

NPPF
P.56 - minimum, relevant to development to be permitted, enforceable, precise, reasonable in all other aspects

Town and Country Planning Act 1990
Part III, Chapter covers Determining Applications
S70 - Determination of application: general considerations (grant unconditionally, subject to conditions, refuse)
S72 - Conditional grant of planning permissions - abiding to timescales
S73 - Determination of applications to development land without compliance with conditions previously attached
S73a - Planning permission for development already carried out

The T&CP (PRE-commencement conditions) regulations 2018

National Planning Guidance
- Use of planning conditions

Question 19

When should pre-commencement conditions be used?

Answer 19

Meet the requirements within paragraph 56 of the NPPF

Clearly justified and likely to mean that the requirements are so fundamental to the development permitted that it would be otherwise necessary to refuse the whole planning permission

Question 20

When might a pre-commencement condition be found unlawful?

Answer 20

When it does not meet the legal and policy tests - so it cannot be enforced by LPA if it is breached

Question 21

What happens if a LPA cannot get written agreement from the applicant to agree a pre-commencement condition?

Answer 21

LPA can serve a notice on the condition it wants to impose.
Application cannot be determined until the period of notice has expired unless the applicant provides a substantial response or written agreement to the pre-commencement condition

Question 22

What can an applicant do if it receives a notice on the pre-commencement conditions the LPA wants to impose?

Answer 22

provide written agreement (within the time limit) to the terms of the proposed pre-commencement condition -LPA may grant planning permission subject to that pre-commencement condition

provide comments (within the time limit) on the proposed pre-commencement condition, in which case that condition cannot be imposed

choose not respond (i.e. remain silent). If there is no response by the date given in the notice the LPA may grant planning permission subject to the terms of the pre-commencement condition specified in the notice

indicate (within the time limit) that they do not agree to the terms of the proposed pre-commencement condition, in which case the LPA may then either:
o i. grant planning permission without the pre-commencement condition,
o ii. seek written agreement to an alternative pre-commencement condition, or
o iii. refuse to grant permission (if it considers that the disputed pre-commencement condition is necessary to make the development acceptable in planning terms).

If the applicant doesn’t want to comply with a condition they can:

Some or all of the conditions could be removed or changed by making an application to the local planning authority under s73 of the T&CPA 1990.

Appeal to the Secretary of State

Question 23

How are conditions treated under section 73?

Answer 23

The original planning permission will continue to exist whatever the outcome of the application under S73
In granting permission under s73 the LPA may also impose new conditions – provided the conditions do not materially alter the development that was subject to the original permission and are conditions which could have been imposed on the earlier planning permission.

Decision notices for the grant of planning permission under s73 should set out all of the conditions imposed on the new permission, and restate the conditions imposed on earlier permissions that continue to have effect.

Question 24

How can a developer seek to discharge conditions attached to a planning permission that require LPA approval of further details?

Answer 24

Made to the LPA in writing, enclosing any relevant details - request for approval to discharge conditions

Question 25

How long should it take for a local planning authority to discharge a planning condition?

Answer 25

The LPA should respond without delay

8 weeks, beginning with the day immediately following that on which the application is received, or any longer period agreed in writing between the applicant and local planning authority.

If discharge is required on a planning permission for an EIA development and must be obtained before all or part of the development can being – 16 weeks.

If no decision is made to discharge the condition within 12 weeks, the local planning authority must return the fee to the applicant without further delay.

Question 26

What is deemed discharge of a condition and what is its purpose?

Answer 26

LPA consent, agreement or approval to any matter as required by the condition is deemed to have been given

The procedure is designed to avoid unacceptable delays and costs at a stage in the development process where applicants are close to starting on site or where development is underway.

Question 27

What is the process for activating deemed discharge?

Answer 27

Activated by the applicant if they consider there is a delay in the discharge of a condition, the ‘deemed discharge’ process may be activated (where that is permitted, and where no appeal has been made under section 78 of the 1990 Act).

Applicant serves a ‘deemed discharge’ notice on the LPA.

A deemed discharge notice may only be served once one of the following have elapsed:

• at least 6 weeks beginning with the day immediately following that on which the application is received by the LPA; or
• such shorter period as may be agreed in writing between the applicant and the LPA for serving a notice.

If the applicant has served a deemed discharge notice and the LPA fails to determine the application by the date specified in the notice or such later date as may have been agreed in writing, approval is deemed to have been given, with the consequence that the condition is deemed to be discharged.

Question 28

How is the date specified in the notice calculated in deemed discharge?

Answer 28

The date specified in the notice must be no earlier than the date the LPA needs to give an outcome (8 or 16 weeks), or 14 days after the day immediately following that on which the deemed discharge notice is received by the local planning authority, whichever is later.

Question 29

How is a planning conditions removed or amended?

Answer 29

S73 application.

An application for Removal or Variation of conditions can be used to change or remove conditions which have been previously imposed.

Proof will have to be submitted that the conditions are no longer relevant or reasonable.

The Local Planning Authority can grant such permission unconditionally or subject to different conditions, or they can refuse the application if they decide that the original condition(s) should continue.