The Neighbourhood Planning Bill v Conditions

The Neighbourhood Planning Bill proposes some important changes to the planning conditions regime. DCLG published its Improving the Use of Conditions consultation paper  on 7 September 2016 alongside the Bill  (with a consultation deadline of 2 November 2016). 
There are two main elements to the proposals.
Restriction on pre-commencement conditions
I blogged  back in June when the proposal to clamp down further on pre-commencement conditions was first announced. 
As it happens, in my view what is proposed in clause 7 of the Bill, that pre-commencement conditions should not be imposed without the applicant’s written agreement, is pretty sensible as a cross-check that restrictions are not introduced without discussion. Of course, it is not a panacea and in some cases the applicant may be faced with a gun to the head – accept the condition or the application is will be refused – but in many more cases there will be the opportunity for consensus to be reached and the rigmarole avoided of subsequent 73 or 96A applications to morph conditions into a regime that does not unreasonably impede development. 
Indeed, why shouldn’t all conditions be agreed in draft with the applicant wherever possible?
Power for the Secretary of State to ban conditions of a prescribed description
This is more problematic. Clause 7(2) provides that such a ban must first be consulted upon and must only be for the purposes of ensuring that any condition meets the traditional tests of being
– necessary to make the development acceptable in planning terms;

– relevant to the development and to planning considerations generally;

– sufficiently precise to make it capable of being complied with and enforced; and

– reasonable in all other respects. 

Table 1 in the consultation paper lists various very general categories of conditions that should not be used (as per current planning practice guidance) and seeks views on whether any of them should be expressly prohibited by legislation. One wonders what the point of this is. The list in table 1 is very general eg 
– “conditions which unreasonably impact on the deliverability of a development – eg disproportionate financial burden”

– “conditions which duplicate a requirement for compliance with other regulatory requirements – eg Building Regulations”

What will it add to have these general principles in legislation in addition to policy? Who is going to challenge the imposition of conditions by way of the courts, rather than apply to remove the offending condition by way of section 73, with the ability to appeal to the Planning Inspectorate?

Generally, as with section 106 agreements, the exercise of drafting and negotiating conditions is getting increasingly fraught. Some examples:
The Darnhall appeal
The Secretary of State dismissed an appeal for residential development at Darnhall School Lane, Winsford, Cheshire on 7 July 2016, against his inspector’s recommendations. The decision letter  contains some interesting conclusions on a series of draft conditions offered by the appellant:
– training and employment – “not sufficiently precise and would be difficult to enforce, partly because it would be difficult to detect a breach”

– self-build housing – “not necessary to make the scheme acceptable in planning terms. Moreover…there are still concerns raised by the Council as to the effect on affordability which leads the Secretary of State to find that this condition is not reasonable in all other respects”

– local builders – “not necessary to make the development acceptable in planning terms and would not be strictly relevant to planning policy. Dependent on the builders or companies available through the build-out of the development the condition would be difficult to enforce, neither would it be precise, pr reasonable in all other respects”. 

– local procurement – “would not be necessary to make the development acceptable in planning terms. Neither is it strictly related to planning. The condition would be difficult to enforce, in part because it could prove difficult to detect a breach. The Secretary of State also considers that it is unclear what the position is in relation to the availability of business within the specified area to meet the criteria and therefore whether this condition would be reasonable in all other respects”. 

How does this ultra-rigid, purist, approach, fit with the approach taken by many LPAs? It doesn’t at all, obviously. The decision is under challenge, with Chris Young of No 5 Chambers acting for the appellant/claimant. 
“Tailpiece” conditions

“Tailpiece” conditions, along the lines of “unless otherwise approved by the Council” are pretty irresistible to those drafting conditions, seemingly offering a way to sidestep the need for subsequent formal applications under section 73 or 96A where changes are required, as they often are. However their use has been successfully challenged in a series of cases, for instance R (Butler) v East Dorset District Council  (Deputy Judge Rhodri Price-Lewis QC, 28 June 2016), Hubert v Carmarthenshire County Council  (Cranston J, 5 August 2015) and R (Warley) v Wealden District Council  (Deputy Judge Rabinder Singh QC, 8 July 2011). They should only be used where their scope is is closely defined in terms of the criteria to be applied by the decision maker or in terms of only extending to minor changes. 

Sustainability
Eric Pickles’ ministerial statement  25 March 2015 announced the withdrawal of the Code for Sustainable Homes and that until amendments to the Planning and Energy Act 2008 are introduced (which are still awaited) the Secretary of State would “expect Local Planning Authorities to take this statement of the government’s intention into account in applying existing policies and not set conditions above a Code Level 4 equivalent”. 
The same announcement advised LPAs that they should only set additional standards to those contained in the Building Regulations if they are able to justify why this is required and provide evidence to that effect. 
The planning system’s flexibility can be a great asset in negotiating planning permissions that both protect the public interest and meet the applicant’s requirements. We need to be careful that by ad hoc measures this flexibility is not lost – or that the process of issuing a planning permission becomes more routinely a negotiation between respective legal teams and tiptoe around the elephant traps, as it often already is on large schemes. 
Simon Ricketts 9.9.16

Personal views, et cetera

We Need To Talk About Conditions

Can we scratch beneath the surface in relation to this issue about pre-commencement planning conditions?
We’re told that the Neighbourhood Planning & Infrastructure Bill will contain provisions:
“To ensure that pre-commencement planning conditions are only imposed by local planning authorities where they are absolutely necessary.

Excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission.

The new legislation would tackle the overuse, and in some cases, misuse of certain planning conditions, and thereby ensure that development, including new housing, can get underway without unnecessary delay.”



Odd given that the Planning Practice Guidance already advises:
“Care should be taken when considering using conditions that prevent any development authorised by the planning permission from beginning until the condition has been complied with. This includes conditions stating that ‘no development shall take place until…’ or ‘prior to any works starting on site…’.

Such conditions should only be used where the local planning authority is satisfied that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would have been otherwise necessary to refuse the whole permission. A condition precedent that does not meet the legal and policy tests may be found to be unlawful by the courts and therefore cannot be enforced by the local planning authority if it is breached.”



What punishment is now planned for an LPA (and, indirectly, the applicant) where an unnecessary pre-commencement condition is imposed? If it includes the remedy of judicial review, putting the permission itself at risk, that is exactly the sort of trip hazard that nobody needs and an early candidate perhaps for the next red tape challenge. 
Setting to one side for a moment whatever the specific issue may be in relation to pre-commencement conditions, there is a lot of noise about the increasing number of conditions attached to planning permissions for all but the most straight-forward of development projects. Richard Harwood QC has written an interesting piece on the issue.

In my view there are various “real world” causes:
– LPAs’ internal computerised lists of template conditions make it easy for them to err on the safe side.
– experience tells us that if matters are left unregulated they will not necessarily be addressed. 
– the much wider scope of issues that are material planning conditions and that therefore are drawn into the LPA process (with wish lists of recommended conditions often chipped into by internal and external consultees). 
– (particularly in relation to EIA development) the need to define what has been permitted and the way in which mitigation, assumed in the assessment, will actually, come forward. 
– a pragmatic deal between applicant and LPA to “park” particular outstanding issues, which might otherwise have been grounds for refusal if not satisfactorily resolved, to be addressed later in the development process. 
– the sheer scale and complexity of many modern development projects. 
Turning specifically to pre-commencement conditions, in my view there are, again, a number of issues:
– all of the above
– LPAs that seek for issues to be resolved earlier than is necessary or practical in the development process. 
– often a failure to consider how a project will be phased and whether a matter should be addressed prior to commencement of each phase rather than upfront in relation to the whole of what may be a longterm development that is to be built out by a variety of parties. 
As well as potentially causing delay to any start on site, unnecessary front loading of costs and premature closing-off of technical and design solutions, the other real pain caused by pre-commencement conditions is that they need to be addressed prior to any early material operation so as to keep the planning permission alive (and risk any actual work being held by the courts not to amount to a valid material operation). Of course, we all get the motivations behind “use it or lose it” but equally:
– permission implementation deadlines are increasingly tight as against what needs to be done ahead of the diggers and cranes. 
– a planning permission is not to be lost lightly, given the huge capital investment it will often represent and the political and legal uncertainties that have been successfully navigated to reach that point. Indeed, if it could be lost lightly, that capital would be unlikely to be invested in the first place. 
All of these motivations, all in my view reasonable, lie behind the continuing drive to reduce pre-commencement conditions to a minimum. 
However, let’s not throw the baby out with the bath water. Can we dare to hope for provisions in the forthcoming Bill that do not give rise to the risk of judicial review and that do not reduce the scope for an LPA to negotiate pragmatic solutions rather than be driven either to refuse permission or achieve its objectives by the backdoor (ie by section 106 agreement)? 
Simon Ricketts 6.6.16
Personal views et cetera