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Oliver Bussell

Partner - Sevenoaks and Ashford

5th February 2020

Restrictions on Grampian conditions: Are local authorities aware, and what are the consequences for developers

In 1899 Sigmund Freud presented his groundbreaking psychoanalytic work, “On The Interpretation of Dreams”. It introduced the notions of the unconscious, self-censorship and using them to understand and interpret dreams.

I don’t know whether the interpretation of planning conditions can have quite the same interest but what can be said for it is that the rules are a bit clearer – if only local planning authorities would follow them!

Conditions on planning consents

Conditions imposed on planning consents were until recently subject to very little legal scrutiny as a general rule. Debate centred on anything an applicant definitively could not live with. There were only policy tests (set out in the National Planning Policy Framework) of reasonableness, relevance, proportionality and enforceability. But there was not a great deal more than that to inform what are normally judgements made by planning officers, and which the courts are naturally reluctant to start making legal judgments about.

The result? Well, in an already imperfect system, the tendency in some authorities was for a knee-jerk reliance on extensive and often unnecessary conditions drawn from “standard” templates of conditions (which all councils keep). Given the effects planning conditions can have on the use of land that can result in a pretty undesirable situation arising of land being needlessly blighted by irrelevant conditions.

Grampian conditions

But it doesn’t end there. In the Neighbourhood Planning Act 2017 a new section was added to the Town and Country Planning Act. When it came into force in October 2018 it had the effect of preventing a local authority from imposing one of the more restrictive planning conditions unless it had got the written agreement of the applicant. This is a condition precedent on implementing a permission, or a “Grampian” condition. As planning consents only normally give three years to implement consents, these can pose a real timing problem for developers.

The 2018 arrangement works in the following way. Where a local authority wishes to impose conditions precedent on the consent it must write to the applicant with the draft condition and seek approval. The applicant can either give that approval, or they can refuse it (or they can ignore it, in which case the condition applies!). If they refuse then the local authority cannot grant the consent with that condition on it. They can reconsider their position and either decide the point can be resolved in a non-Grampian way, or suggest a differently worded condition. But if they feel strongly enough that the condition goes to the heart of the planning permission ie. ground should not be broken until it has been complied with – they must refuse the application and presumably cite the Grampian issue as a reason for refusal. The ball is in the applicant’s court at that point – it is for them to appeal that refusal.

Local authorities and the law

The sense I have since the legislation came into force is that where authorities are aware of the rules they are taken seriously and result in fewer Grampian condition and fewer conditions overall. But I am also aware of several situations where local authorities simply ignore the law and impose the Grampian condition in exactly the same way they had done since well before 2018. A good idea, do you think?

Well obviously I don’t think so. The effect of a local authority ignoring the law is one of two things (and possibly both of them).

Firstly, because the local authority did not follow its own “precondition” to the grant of a Grampian condition, that condition was not lawfully imposed. To put it another way, there would be no Grampian condition on the planning permission because although the local authority purported to impose it, it was acting outside its powers to do so. That makes the planning condition on its face unenforceable. That could feed into a landowner’s grounds for appeal on any subsequent planning enforcement.

Secondly, because of all that, the entire planning permission might also be a nullity. Why? Because if the matter which the local authority was trying to condition was important, it had nonetheless not been subject to any control.

So the basic point here is that local authorities ought to follow the law to do their job properly. But more importantly the consequences of their not doing so could become very serious indeed for a developer further down the line if the project they are engaged on can be held not to have been subject to lawful planning conditions.

Future impact on planning conditions

Ten years ago, legal tests were put on the grant of s106 covenants for the first time: policy had governed the situation previously. Planning permissions have been quashed by the courts since then because of a failure to apply those tests. Now we have a similar approach for planning conditions. That is something which should focus minds at all responsible local authorities before the inevitable happens and an authority attempts to enforce a condition that was not lawfully imposed in the first place, raising the question of the lawfulness of the entire consent!

If you need help with negotiating planning conditions we would point clients to firms of planning consultants that we work with, but with any questions as to lawfulness we are able to advise:

Oliver Bussell
Partner, Commercial Property and Planning
T. 01732 448050
E. oliverbussell@rixandkay.co.uk

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