Partner Karen Jones, in our Planning & Environmental Law team, explains.
Planning Conditions should not be imposed on the grant of planning permission unless the condition meets the six tests set out in Paragraph 56 of the National Planning Policy Framework (NPPF). These are:
- necessary;
- relevant to planning;
- relevant to the development to be permitted;
- enforceable;
- precise; and
- reasonable in all other respects.
Conditions can be used to curtail or remove certain permitted development rights. However, the Planning Practice Guidance confirms that such conditions “may not pass the test of reasonableness or necessity” and in order to be imposed the condition needs to be justified and the permitted development rights to be withdrawn/curtailed clearly defined.
A number of recent appeal decisions have considered when such a condition might be appropriate. Importantly the below decisions were made prior to the National Planning Policy Framework update in July 2021 which includes a new Paragraph 54 which provides that “planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so”. It will be interesting to see how this Paragraph 54 is applied in practice.
Recent appeal decisions
The first appeal decision is APP/T5720/W/20/3261187, here the Appellant had appealed against a refusal by the London Borough of Merton for the erection of a three bedroomed house. The new dwelling was proposed to be attached to two additional dwellings which had recently been granted permission as part of a mixed use development which was currently under construction.
The Council had refused planning permission on three grounds. The Inspector allowed the appeal subject to 10 conditions. Condition 4 provided “Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any Order revoking and re-enacting that Order with or without modification), no extension, enlargement or other alteration of the dwellinghouse other than that expressly authorised by this permission shall be carried out without planning permission first obtained from the Local Planning Authority.”
When considering whether the above condition should be applied the Inspector found that because of the “relatively dense, urban nature of the site” a condition restricting the permitted development rights within Condition 4 could be justified and met the six tests.
In April 2020 Staffordshire Moorlands District Council granted planning permission for the “erection of a dwelling, alterations to existing vehicular access, construction of car parking spaces”. That planning permission was subject to a number of planning conditions with one condition the Appellant disputed in particular. The Appellant therefore appealed against that condition (APP/B3438/W/21/3270472).
The relevant condition was Condition 17 which provided that “notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 2015 (or any order revoking and re-enacting that order with or without modification), no development as specified in Part 1 Class(es) A, AA, B, E and F or Part 2 Class A or Part 20 shall be carried out within the site without express planning permission first being obtained from the Local Planning Authority”.
The Inspector considered each of the classes of Permitted Development removed by the condition in turn. In respect of Class AA of Part 1 and Part 20 the Inspector referred to a condition under those Classes that restricts the exercise where the dwelling is built after 2018. In those circumstances the permitted development rights could not be exercised, accordingly the Inspector found the condition in respect of those classes to not be necessary or reasonable. The Inspector also concluded that a restriction on Class B failed for the same reasons.
In respect of Class A Part 1 the Inspector found that there were sufficient conditions and limitations that would prevent harm to neighbouring occupiers and amenity. In light of this the condition was not necessary.
The Inspector then turned to Classes E and F of Part 1 and Class A Part 2 and found that the restrictions were both reasonable and necessary as development under these Classes would adversely impact the Green Belt and that harm would need to be properly assessed.
In light of the findings above the Inspector varied Condition 17 to read as follows:
“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 2015 (or any order revoking and re-enacting that order with or without modification), no development as specified in Class E and Class F, Part 1; Class A, Part 2 or Part 20 shall be carried out within the site without express planning permission first being obtained from the Local Planning Authority”.
Commentary
Advice should be sought at the earliest opportunity if you are made aware by the Council that a condition restricting future permitted development rights will be imposed, or where planning permission has otherwise been granted with such a condition.
Where a condition is imposed and is not varied it is imperative that you ensure that any future development does not conflict with that condition, and if so, that planning permission is sought and obtained prior to beginning any works.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
