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News & Knowledge

UK: Planning conditions & conditions precedent

19th January 2017

Daniel Addis, Burnetts

The Department of Communities and Local Government (DCLG) issued a consultation on improving the use of planning conditions on 7 September 2016. MSI's Northern UK law member Burnetts explains the planning conditions and why they are used by local planning authorities.

The consultation, which ended on 2 November 2016 sought to “address the urgent need to tackle the inappropriate use of ‘pre-commencement’ conditions” …by… “introducing a power in the Neighbourhood Planning Bill to ensure that these conditions can only be used with the agreement of the applicant.”

A number of responses to the consultation have now been received including from the Law Society’s Planning and Environmental Law Committee, The British Property Federation and the Planning Officers’ Society. The responses are mixed though a shared theme acknowledges the importance of using ‘proportionate and appropriate’ planning conditions.

But what are planning conditions and do we really need them?

Planning Conditions

All local planning authorities are entitled to apply planning conditions to a planning approval. However, this must not be a ‘free for all’ to cover every eventuality. There are six tests that conditions must meet: Each condition must be:

  • Necessary i.e. without the condition the application would have to be refused
  • Relevant to planning i.e. relates to planning objectives and within the scope of the application
  • Relevant to the development i.e. fairly and reasonably related to the development to be permitted
  • Enforceable i.e. the local planning authority must be able to enforce the condition
  • Precise i.e. clear to the all interested parties
  • Reasonable i.e. justifiable and proportionate given its context

Local planning authorities must consider each condition against these six tests. If a condition does not meet a test then it cannot be applied. Should a local planning authority apply a condition to an approval which does not meet a test the condition could be successful appealed and an award of costs granted against the Council.

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