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Oliver Bussell

Partner - Sevenoaks and Ashford

15th May 2018

What happens when a condition is removed from a planning permission?

As some readers will know you can remove a condition from a planning permission, by making a “section 73 application” to the local authority, paying a fee – and waiting around for a decision. So far, so bureaucratic and predictable.

What frequently gets forgotten – even by councils – is that the resulting approval is not in any sense a footnote to the original permission. It is an entirely new, standalone planning permission. The conditions that burdened the original consent need to be re-stated. They often haven’t been.

In those circumstances the new planning permission has no conditions.

The Court of Appeal has reminded everyone that these permissions necessitate all the relevant conditions being stated, following the case of Lambeth Council v Secretary of State for Communities and Local Government. Here, Lambeth forgot to re-state a condition preventing the sale of food, on a section 73 permission. The court held that there are no implied conditions (other than those needed to give effect to another condition). The planning consent was unrestricted in terms of food sales.

So, it’s always worth looking closely at a planning consent if it arose via the section 73 route to see whether any advantage lies in the conditions, or rather the lack of them.

The case also reminds us that councils should only impose any condition where it still meets all the tests set out in the national planning policy framework (NPPF): necessity, relevance, enforceability, precision and reasonableness. You might only want the removal of one condition. But if you’re making the application anyway it’s surely worth getting an up to date and commercially more relevant suite of conditions in the process. Re-testing each of these against the NPPF criteria could help make the property a more marketable asset.

If you would like to discuss any issues around planning permission or planning law please email oliverbussell@rixandkay.co.uk

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