1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

What happens to old applications?

The question of what powers LPAs have to deal with old planning applications is raised by both applicants, concerned that their planning application may be unilaterally withdrawn, and LPAs, keen to understand their options for dealing with undetermined applications.

A LPA can decline to deal with an application if: (i) it is not made in the prescribed form; (ii) the circumstances set out in section 70A of the Town and Country Planning Act 1990 (‘TCPA’) apply (namely, the LPA / Secretary of State has refused a similar application in the previous 2 year period and there has been no significant change in the relevant considerations); or (iii) it constitutes an overlapping application under section 70B TCPA.  However, there is no power for an LPA to actually withdraw a planning application.

Instead, an LPA may seek to record the application as “finally disposed of” to avoid the application remaining open indefinitely. What does this mean?  What is the effect?

“Finally disposed of”

The term “finally disposed of” is used in article 40 of the General Development Procedure Order 2015 (‘GDPO’).  Under article 40(2) GDPO, each local planning register authority must keep a register of every live application for planning permission relating to their area.

Article 40(13) GDPO sets out the circumstances in which an application can be treated as finally disposed of.  In summary, this is where an application has been:

  1. granted or refused by the LPA  and the time limit for appealing has expired without appeal;
  2. referred / appealed to the Secretary of State, who has issued a decision and any application to the High Court has been finally determined;
  3. withdrawn before being decided by the LPA / Secretary of State or an appeal has been withdrawn before the Secretary of State has issued a decision; or
  4. finally, the period for determination and appeal has expired no decision has been made.  This means that a LPA can simply record an application as finally disposed of as soon as the period for determination and appeal has expired – so watch for that date.

Once any of these requirements are satisfied, the LPA may treat the application as finally disposed of and elect to remove the application from its Planning Register.

Best Practice for applicants

To avoid an application being finally disposed of, applicants should either: (i) agree to extend the time period for the Council to determine the application; or (ii) if the LPA fails to determine the application within the statutory period, appeal on the grounds of non-determination. Applicants should note that if the application period is extended, the right to a refund is lost, even if the authority fails to meet the extended deadline.

Best Practice for LPAs

Once the date for determination has passed, consideration should be given at regular intervals to whether the application should be deemed “finally disposed of” and removed from the Planning Register. Given the cost and expense of submitting an application an LPA should notify the applicant of its intention to treat an application as “finally disposed of” before doing so.  This should set out a timetable for dealing with any outstanding matters.

Refusal as an Alternative

Rather than recording an application as “finally disposed of”, LPAs could simply refuse the application. However, LPAs are often  keen to avoid this course of action for 2 reasons:

  1. Refusal rates are monitored nationally and, in theory, LPAs with clear policies and effective pre-application advice should issue fewer refusals.  LPAs may therefore be concerned that refusing such application will have a negative impact on their performance figures; and
  2. It would reinstate an applicant’s right to appeal.
  3. Given the above, it is likely that LPAs will continue to treat applications as “finally disposed of” unless a formal procedure for LPAs to withdraw planning applications is implemented.  This is unlikely to be high on the agenda at any time in the near future given the raft of more pressing planning matters.

More planning protection for pubs

In 2015, the Government removed permitted development rights from pubs listed as Assets of Community Value (ACVs).  As previously reported, pubs which are listed as ACVs, or have been nominated to become ACVs, require planning permission for changes of use or demolition, which otherwise could be carried out under permitted development rights.

Noting the importance of pubs to local communities, some local authorities have made Article 4 Directions to remove permitted development rights from pubs. The London Borough of Wandsworth made an Article 4 Direction in August 2016 removing specified permitted development rights for changes of use, demolition and alteration for 120 identified pubs and bars.

Following Wandsworth’s lead, the London Borough of Southwark introduced an Article 4 Direction removing permitted development rights from all 188 pubs in Southwark in March 2017.  The Article 4 Direction means that planning permission will need to be obtained for specified changes of use, demolition, demolition or construction of gates, fences and walls, and exterior painting.

After discussions in Parliament in connection with the then Neighbourhood Planning Bill, the protection afforded has been further extended by the Government to cover all pubs rather than just those listed as ACVs. Section 15 of the Neighbourhood Planning Act obliges the Secretary of State to as soon as reasonably practicable make an order to remove permitted development rights for changes of use and demolition of pubs, and to grant permission for pubs to change to pub and café/restaurant use.  This requirement has been met by the making of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, which comes into force on 23 May 2017.

The order removes permitted development rights so in most cases pubs will instead have to apply for planning permission to:

  • change to a shop;
  • change to a restaurant or café;
  • change to a state funded school;
  • change to a temporary flexible use; or
  • to be demolished.

The order includes a new permitted development right, to allow pubs to change use to “drinking establishments with expanded food provision” and vice versa without planning permission.

The order demonstrates the importance of pubs to the Government, by requiring a planning application for a change of use other than to a pub restaurant.  While this change negates the need for communities to list their local as an ACV to prevent changes of use without planning permission, listing could still be pursued.  A local planning authority can consider ACV status as a material consideration on a planning application, and so ACV listing could be an extra factor the local planning authority has to take into account when considering an application to change the use of a pub.  This then offers an extra layer of protection for communities wanting to keep venues operating as pubs.

Planning controversies demand clear reasons

A flurry of decisions on reasons have underlined the need for care in explaining planning decisions, from delegated reports to sensitive areas. Our comprehensive guide to the Oakley green belt case and other decisions is here.

The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal’s approach to the standard of reasons required of an authority granting permission for development of a scale “unprecedented in an AONB” in that case. The judgment confirms that reasons for approval may be required in planning matters where basic fairness demands it, despite the absence of a statutory duty, particularly where significant policy breaches are being entertained. It also highlights the benefits of dealing properly with the need for statements of reasons under the EIA regime.

Controversial proposals

The authority’s officers had recommended a less dense, but – according to its advisors – no less viable approach to delivering housing in the sensitive area.  Members rejected that approach on viability grounds and objectors challenged by judicial review on the basis of inadequate reasons.

No reasons required?

The defendant authority started from the position that there is no duty on planning authorities – unlike the Secretary of State – to give detailed reasons for the grant of permission (adopting the ‘light touch’ approach in R (Hawksworth Securities Plc) v Peterborough City Council & Ors [2016] EWHC 1870 (Admin)) where the standards applicable to an inspector’s decision on appeal were distinguished from merely an ‘administrative’ decisions by local planning authorities).

The Court of Appeal recognised that this approach “needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State.”  In the circumstances of Dover, several factors justified detailed reasons:

  • the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by “substantial reasons”;
  • a departure from officers’ advice;
  • the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Costly admin errors

The Committee minutes in question failed – against that standard – to give legally adequate reasons:

  • firstly, it was unclear whether members accepted their officers’ assessment of harm; if they did, they would have “opted to inflict irreversible harm on the AONB” on the limited material before them;
  • secondly, it was unclear whether they viewed viability issues as a mere risk, which would have made their obligation to address the issue of harm was “all the more acute”;
  • thirdly, it was not clear if they had applied a simple unweighted balance to AONB protections; and
  • finally, they had reached conclusions on visual screening which were “fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes”.

EIA goalie?

The judgment helpfully confirms that while the lack of a regulation 24 statement may not necessarily kill a decision where reasons are adequate on the record, it could save it where they are not.

The Supreme Court judgment, when it comes, should provide a definitive position on the basis and scope for reasons for approval. In the meantime, a little transparency and coherence for controversial decisions can only be a sensible approach.

The right to know why

Is there now a presumption that reasons be given for planning decisions? Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.

Read the full article

This article was first published in Property Law Journal (March 2017) and is also available at http://www.lawjournals.co.uk/.

 

Daylight/ Sunlight Error Fatal To Permission

In Watt, R (on the application of) v London Borough of Hackney & Anor [2016] EWHC 1978 (Admin), the High Court quashed the grant of permission for a mixed use development likely to adversely affect sunlight reaching adjacent open land used by the neighbouring school for children’s play. The application had been considered on the basis the redevelopment of the vacant site would have enhanced the character and appearance of the conservation area.

Latent defects

The authority relied on a daylighting report addressing the extent of reduction in daylight to the play land at different times of year. A claim for judicial review was made on several grounds and independent assessment – carried out after the claim – identified flaws in the original report, exaggerating the existing levels of daylight and so understating (by a third) the effect of the new scheme on the play land.

The judge admitted the new report as part of a ground of claim alleging an error of fact. The defendant authority offered its own evidence in response, but – crucially – did not object to its admission.

Errors of fact can be fatal

The judgment confirms that the error of fact justified quashing the permission in the circumstances: there was a factual error which created a misleading picture; the fact was ‘established’, in the sense of being uncontentious; neither the appellant (nor his advisers) were responsible; and finally, the error played a material part in the reasoning (on the basis that it was impossible to say that had not done so, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306).

Get your facts right

The daylight reaching the play area was above the relevant policy threshold with the correct analysis (just less far above than the original assessment had, wrongly, suggested). Despite the fact that the error may not have been decisive in the overall decision, though, the judge was prepared to quash the permission.  The judgment therefore confirms the risk that faulty technical work creates for planning decisions, even where the error itself is not decisive.

The need for focus on conditions (and not descriptions) in Section 73 applications

The consequences of failing to restrict use by imposing a condition were highlighted in a recent appeal decision concerning a DIY retail unit in South West London.

Both the original planning permission for the retail unit and a subsequent section 73 permission (granted in 2010) included a condition to restrict the sale of non-food goods.  However, the final section 73 permission granted in 2014 contained no such condition.

In 2015, the appellant sought a lawful development certificate permitting use of the premises for purposes within Use Class A1 without restriction on the goods that could be sold. Notwithstanding the lack of a condition restricting use, the Council refused.  Consequently, the applicant appealed citing the decision in I’m your Man v Secretary of State [1999] 77 P. & C.R. 251, which held that where a limitation is to be imposed on a permission granted pursuant to an application, it must be done by condition.

The Council contended that the original conditions were incorporated by reference to the previous permissions or should be implied, referring to the Reid case which held that it is permissible to impose conditions by reference to an earlier planning permission.

However, the Inspector rejected the Council’s arguments, finding that the principles from Reid could not reasonably be extended to the creation and incorporation of an entirely new condition which does not appear on the 2014 permission other than in the description, in accordance with the decision in Dunnett Investments.  The Inspector held that no condition restricting the nature of the retail use to specific uses falling within Use Class A1 had therefore been imposed on the final planning permission.  Accordingly, the appeal was allowed and the lawful development certificate issued.

So what can we take away from the case?

  1. The importance of conditions controlling use.

The decision in Reid confirmed that, in the case of planning permissions granted under section 73, conditions can be imposed in various ways:

  1. impose fresh conditions mirroring the original conditions save for the variation; or
  2. impose only the varied condition and incorporate the unaffected conditions by cross-reference to the original permission.

However, whichever method is used, any differing conditions must be incorporated in full in the new permission. For certainty, LPAs must adopt a ‘belts and braces’ approach and set out all the conditions to which the new planning permission will be subject, restating any unchanged conditions in full rather than relying on cross-referencing.

  1. The myth that the description of development can be varied by way of a section 73 application persists.

Confusion often arises as a result of overly complex and unclear descriptions of development, which applicants and local authorities seek to amend to accord more closely with the section 73 proposals. However, there is no formal ability under section 73 to amend the description of development.  It is therefore better to avoid references to the use classes, floor areas and number of units in the description of development (where possible), as it invariably acts to constrain the ability to lawfully use section 73 amendments to amend schemes post approval.

Steering clear of amendments to the description of development can help to maintain the focus on varying the relevant conditions, reducing the potential for LPAs to fall foul of this issue. As is clear from the present case, LPAs cannot rely on undefined conditions being imposed or implied into new permissions granted under section 73.

As a final note, we are willing to bet that I’m Your Man will be overturned at some point by the Courts or will be ousted by legislation. A failure to constrain by condition something that was clearly described as limited in the description of development should not, as a matter of fairness, lead to a windfall for the owner and a cost to the community.

Assets of Community Value: chickens and eggs

Some recent cases have considered Assets of Community Value (ACVs) where the owner is both appealing a refusal of planning permission, and is also appealing the decision to list the property as an asset of community value.  These cases helpfully demonstrate how the interrelated appeals are considered from both a planning application and listing challenge perspective.

The Alexandra Public House in Haringey closed in 2012, and was listed as an ACV in 2015. The owner bought the pub in a semi-derelict state, and made a planning application to change the building into two dwellings, as well as appealing the listing of the pub as an ACV.

The local authority refused planning permission, but the Secretary of State granted permission on appeal.  The Inspector noted “the primary purpose of ACV listing is to afford the community an opportunity to purchase the property, not to prevent otherwise acceptable development“, and while some weight was afforded to ACV listing, the Inspector found it not to be determinative.  Weight was given to the additional dwelling which would be provided, the improvement in the quality of the existing flat above the pub, the reduction in noise and anti-social behaviour for the neighbours due to the change of use, and the provision of a viable use for a run down the building.

In considering the listing appeal after planning permission had been granted, the Judge referred to the decision in the Tumbledown Dick appeal, which stated that the grant of planning permission for an alternative use should not be ignored in the context of a listing appeal.

The Tumbledown Dick case considered a historic pub, which McDonald’s agreed to purchase before the Localism Act came into force.  Shortly before the First Tier Tribunal considered the listing appeal, McDonald’s obtained planning permission for a change of use to restaurant/takeaway.  The Judge considered that the grant of planning permission, along with the sale of the freehold, substantial expenditure being required to bring the building back into use and that it had been vacant for five years made a future community use unrealistic.

The Judge noted that where permission is refused, it might make it more likely that the building would be sold at a price which could support a community use, or allow the continuation of the current community use. In this case, as planning permission for residential use had been obtained, it was much less likely that the Alexandra would be sold at a price low enough to allow a pub use.  On this basis, the Judge allowed the appeal to remove the property from the list of ACVs.

The Ship in South Norwood closed as a pub in 2014, and was listed as an ACV in 2016. The Ship was converted to residential.  The Local Authority issued an enforcement notice for the conversion of the public house into seven flats and office space, along with physical works, which the owner appealed.

In considering the enforcement appeal, the Inspector noted that the ACV listing was being challenged on the basis the decision was made outside the specified time limit, and that if the ACV status was not confirmed, the building could be used as shops, financial and professional services or restaurants or cafes under permitted development rights. While a material consideration, ACV listing did not outweigh the benefits of providing additional housing and a viable use for the building, and the appeal was allowed and permission granted for the change of use.  The Ship remains on Croydon’s list of ACVs.

These cases are helpful in showing the Secretary of State’s approach to ACV status. While it is a material consideration, in neither case did it result in planning permission being refused for a change of use which will effectively end the community use.  This is a clear departure from the view expressed by the Upper Tribunal in Banner Homes, that any permission for a change of use was likely to be refused while the asset was ACV listed, as we discussed in a previous blog.  While owners of ACVs may be reassured that planning permission has been granted as part of an assessment of fairly ordinary planning considerations, nominating groups may be dismayed that ACV status did not afford these community assets greater protection against a change of use.

Amalgamation of units still at risk

As we have noted previously, the Town and Country Planning Act 1990 (“TCPA”) is clear that the conversion of a single unit into several units requires planning permission. Although the legislation is silent on amalgamation, it may too be a material change of use requiring planning permission (see our 13 May 2014 blog).

In the recent Cheyne Gardens appeal an Inspector dismissed an appeal against Royal Borough of Kensington and Chelsea (“RBKC”)’s decision not to grant a certificate of lawfulness for works to amalgamate two flats into a single dwelling. Planning permission had been refused and the applicant argued that a Certificate should be granted on the grounds that there was no material change of use requiring planning permission.  The analysis centred on two questions:

1          Is the change of use ‘development’?  ap

The appellant argued that the proposals should not be treated as development on the basis of Section 55(2)(f) TCPA and Article 3(1) of The Town and Country Planning (Use Classes) Order 1987. Both provide that where a building is used for a purpose of any class specified in the schedule to that Order, the use of that building for any other purpose within the same class shall not be taken to involve development of land. In Richmond upon Thames v SSETR & Richmond upon Thames Churches Housing Trust [2000] this was confirmed as engaged where the combined units were already in a single occupation.

The Inspector refused to apply Section 55(2)(f) and Article 3(1) on the basis that the two flats in this case were in use as two separate dwellinghouses, each occupied by a single household or person. The revised position would be one unit occupied by a single household or person.  Whilst the new arrangement, by virtue of the amalgamation, would be used for one of the uses within Class C3, it would not be the self-same building in the before and after scenarios.  The amalgamation was therefore development capable of amounting to a material change of use.

2          Is the change of use material in planning terms?

Richmond established that the extent to which a particular use fulfils a legitimate or recognised planning purpose (in terms of a purpose relating to the character of the land) is relevant in deciding whether a change from that use is a material change of use.   In particular, the loss of a particular type of residential accommodation where that loss was resisted by specific policies.

RBKC put forward evidence that de-conversions and amalgamations were anticipated to result in the loss of 400 homes over a five year period. Set against that, London Plan Policy 3.3 imposes a minimum 10 year housing building target of 7,330 dwellings for RBKC, with an annual monitoring target of 733 homes.  The Inspector considered that the loss of one unit should be considered against the annual target.  Despite accepting that this would be an “almost infinitesimal change” (and the loss of the single unit was under the 5 unit threshold set in the RBKC policy) he nonetheless decided that it would “as a matter of fact and degree have a significant impact in planning terms” concluding that circumstances had “changed significantly” since the adoption of that policy.

So what?

The focus of recent amalgamation appeals has been on the materiality of the change, rather than the question of whether there has been a change of use. The decision reflects the approach applied by the High Court in June, quashing CLEUD and Section 78 appeals on the basis that the Inspector should have taken account of generalised housing need arguments despite the lack of a specific policy threshold.

Although there is real scope to achieve permission on the basis that the loss of supply is clearly de minimis, the Cheyne Gardens decision confirms that decision makers will continue to treat general housing supply policies as a basis for regarding small amalgamations as material even though more specific policies on such changes do not necessarily warrant it.  The difficulties of doing so in the absence of such policies are illustrated by the 77 Drayton Gardens decision, in which the Inspector refused to grant a CLEUD (on the basis that a material change had occurred by virtue of amalgamation of two units, treating the existence of restrictive policies as weighing on the ‘threshold’ question of whether a change of use had occurred). He nonetheless quashed the related enforcement notice and granted permission on the basis that evidence of housing need (including for larger units) and actual supply outweighed the conflict with the development plan.

Short term rentals – a potential planning issue?

The recent decision in Iveta Nemcova v Fairflied Rents Limited [2016] UKUT 303 underlined the importance of reviewing lease terms (in particular, the user covenant) prior to letting residential property on a short term basis, as set out in our alert.  It therefore seems timely to reflect upon the potential planning issues raised by short term rentals, particularly given the rising popularity of websites such as Airbnb and onefinestay.

airWhat’s the use?

From a planning perspective, permanent use of residential property for temporary sleeping accommodation constitutes a material change of use for which planning permission is required.

Short-term lettings in Greater London are also subject to a further planning restriction in the form of Section 25 Greater London Council (General Powers) Act 1973. This makes the use of residential premises as temporary sleeping accommodation for less than 90 consecutive nights a material change of use requiring planning permission.  The purpose behind the provision is to protect London’s permanent housing supply.

The Government introduced an exception to this restriction in the Deregulation Act 2015.  As a result, short term lettings in the capital are no longer deemed a material change of use if:

  1. the cumulative number of nights use as temporary accommodation does not exceed 90 nights in any one go (or any calendar year); and
  2. the person providing the accommodation is liable to pay council tax.

Such use may, nonetheless, be classed as a material change of use under Building Regulations. Consequently, upgrade works may still be required to comply with relevant standards.

The new rules also grant the Secretary of State power to create further exceptions by way of regulations, albeit subject to approval by both Houses of Parliament.

Motivating factors

The Government’s rationale for relaxing the rules was set out in ‘Promoting the sharing economy in London – Policy on short-term use of residential property in London’, which came out of a wider review of property conditions in the private rented sector.  In short, the changes were intended to give Londoners the opportunity to earn extra income renting out their property and expand the pool of competitively priced accommodation in the capital, while removing uncertainty caused by inconsistent enforcement of section 25 across London Boroughs.

Safeguards

The new 90 day cap was imposed to prevent permanent temporary sleeping accommodation use. As a further safeguard, local authorities can direct that the new rules do not apply to: (i) a particular residential premise (for example, where there has already been enforcement action against a statutory nuisance); or (ii) a particular area.  However, local authorities can only use this power with the consent of the Secretary of State where it is “necessary to protect the amenity of the locality”.  Time will tell whether these safeguards prove to be effective.

Policy conflicts?

The reforms are consistent with the Government’s broader objectives of relaxing planning laws and reducing the burden of unnecessary change of use applications. However, they would appear to be at odds with the Government’s drive to increase the supply of homes.  It is therefore doubtful that the Secretary of State will make further exceptions to section 25 in the near future.

Improving the use of Planning Conditions?

Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.

Long game

This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice.  As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.

Current proposals

textThe DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.

There are 2 key elements to the Government’s proposals:

  1. Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
  2. Prohibition of specific types of conditions.

1) Restriction on the use of pre-commencement conditions

LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced.  Of course, there is a risk that front loading the process will lead to delays in planning applications being determined.  There are several practical implications:

  • Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
  • The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
  • The restrictions will not apply to outline permissions. The Consultation does not explain why.  However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.

2) Prohibition of specific types of conditions

At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.

The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.

Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.

Conclusions

The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.