All planning consents are subject to planning conditions. These can be from the basic conditions, required by legislation, such as time limits or approved plans to more complex conditions requiring submission of further information or compliance with certain reports.
So, what can be conditioned? The revised National Planning Policy Framework 2019 (the Framework), paragraph 55, is clear that planning conditions should only be imposed where they are necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects (the six tests). The wording of the Framework is clear – all the tests should be met. Any condition which fails to meet one of the six tests should not be used as confirmed in Planning Practice Guidance (PPG), use of conditions, even if the applicant agrees to it.
Sometimes consent is granted subject to conditions which the applicant feels are inappropriate or too restrictive and it is important to understand the options and issues surrounding varying such conditions, as well as the rare but real risks with some types of appeal routes. Section 73 of the Town and Country Planning act (1990) provides a power to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted. In practice, this allows certain conditions to be removed altogether, to be relaxed or varied.
Earlier this month the Court of Appeal issued a useful judgment which confirms the correct approach in exercising the power to vary the conditions attached to a planning permission. This was within the case of Finney v Welsh Ministers [2019] EWCA Civ 1868. The Court of Appeal’s judgment in Finney makes it clear that there is a limit to how far the variation of a condition under section 73 may lawfully go. Importantly, it confirms that the description of the development cannot be changed under such a route – only the conditions which are attached can be varied. An applicant has two main options should they wish to seek to vary a condition or conditions. Depending on the timescales, and when the consent was granted, an application can be made to the Local Planning Authority (LPA) to vary, or remove, the condition or an appeal can be lodged with the Planning Inspectorate based upon a condition to which you object.
Whilst all condition appeals are made under S78 many appellants, and worryingly some agents, are not aware there are actually five “types” of appeals against condition. One of the most common, and to which this article is geared, is appeals directly following a conditional grant of planning permission. This type of appeal is made within six months and it should be noted that the WHOLE consent, not just the condition, is before the Inspector – the original decision could be reviewed or reversed. Whilst this would be very rare, and indeed most Inspectors would allow you chance to withdraw if this was a possibility, it is something which appellants and agents should be aware of when submitting such appeals.
So, in short, conditions on consents must meet the tests and be fully justified. There are options to seek variations or removal of conditions in a variety of circumstances, but the consequences should be fully understood, and it should not be used to try to change the description of the development. Overall, seeking to challenge or change conditions can be a potentially complex area which highlights the requirement for good advice as to the options as soon as possible.