planning committee training reasons for decisions & conditions 15 december 2011

PLANNING COMMITTEE TRAINING

REASONS FOR DECISIONS & CONDITIONS

15 DECEMBER 2011

1 - Material Considerations -National Policy

2 - Material Considerations - Local Policies

3 – Urban Design

4 – Localism Act, What’s Development etc

5 – Reasons for Decisions / Conditions

THE USE OF CONDITIONS IN PLANNING PERMISSION

Carol TuckleyPrincipal Enforcement Officer

The Good The Bad………………

and The Ugly

PLANNING CONDITIONS

“The power to impose conditions when granting planning permission is very wide. If used properly, conditions can

enhance the quality of development and enable many development proposals to proceed where it would otherwise have

been necessary to refuse planning permission. “

Circ 11/95

Why Use Conditions?The circular advises

“It is essential that the operation of the planning system should command public confidence. The sensitive use of conditions can improve development control and enhance that confidence. The use of conditions in an unreasonable way, however, so that it proves impracticable or inexpedient to enforce them, will damage such confidence and should be avoided. “

The Six Tests for Conditions:

1. Necessary

2. Relevant to Planning

3. Relevant to the development to be Permitted

4. Enforceable

5. Precise

6. Reasonable in all other respects

Reasons!

• By virtue of the requirements in Article 22 of the Town and Country Planning (General Development Procedure) Order 1995, that an authority deciding to grant permission subject to conditions shall state the reasons for their decision, reasons must be given for the imposition of every condition. Reasons such as "to comply with the policies of the Council", "to secure the proper planning of the area" or "to maintain control over the development" are vague, and can suggest that the condition in question has no proper justification.

The Consequence….

• Since July 1992, local planning authorities have been able to ensure compliance with many planning conditions by serving a breach of condition notice.

• There is no right of appeal to a Breach of Condition Notice….

• BUT…………

BEWARE……………

• If a valid breach of condition notice is contravened, the resulting offence is open to summary prosecution. But the prosecution's case must always be proved on the criminal standard of proof ("beyond reasonable doubt"). Consequently, if the breach of condition notice procedure is to operate effectively, planning conditions must be formulated precisely. In the event of prosecution, the Magistrates' Court will then have no doubt about exactly what is required in order to comply with the terms of a planning condition.

A Good Condition?

• The window in the southern elevation shall be obscure glazed, and be thereafter maintained”

Or is it?

“( what?) The proposed window in the southern elevation of the

extension hereby approved shall be (how?) glazed with obscure

glass, (when?) before first being brought into use ( for how long?)

and thereafter retained”

How about this one?

• “Prior to the commencement of the development hereby permitted a detailed lighting scheme including lantern types and the angle of the floodlighting ( such that it shall not cause glare ), shall be fully implemented concurrently with the development and maintained thereafter”

Common Pitfalls• Not bespoking a condition to the development; ie

“Materials to match the existing house”.

…..for a conservatory!

• Not requiring retention in perpetuity ie. “The proposed rear access door shall be fitted with an audible alarm”.….it was, and then it was taken off!

• Not giving consideration to the description of the development when wording the condition: ie. For a single story extension and 2 dormers to roof, “The materials used in construction of the extension shall match the existing house”. …..but no mention of the materials for the dormers!

Examples of unacceptable Conditions (11/95)

• To require agreement by a third party ( the Highways Authority )

• To require completion within a timescale

• To require no advertisements on the site ( Controlled by other regulations)

• To fix occupancy numbers ( ie persons occupying flats would require intolerable degree of supervision)

• To require compliance with local bylaws etc ( outside planning control)

• To require loading etc. not to take place on the highway (outside of the applicants control)

• To require a shop window display to be attractive ( subjective)

So… what if no condition is imposed?

• In 2003 PP was granted for: “Demolition of existing dwelling and construction of new house and garage”

• New house and garage was built the same year

• The existing dwelling still stands

• The owner claims that the demolition comprises the final phase of development and he is unsure when that will be!

• There was no condition to specify when the existing dwelling should be removed.

We now have two dwellings on the site

 Section 73 of the Act provides for applications for planning permission to develop land without complying with conditions previously imposed on a planning permission. The local planning authority can grant such permission unconditionally or subject to different conditions, or they can refuse the application if they decide the original condition(s) should continue. The original planning permission will continue to subsist whatever the outcome of the application under section 73. Section 73 will not apply if the period in the previous condition limiting the duration within which the development could begin has now expired without the development having begun.

Power to vary or remove the effect of conditions

To Recap…..

• Conditions should be used to make an otherwise unacceptable development acceptable

• Conditions MUST meet all 6 tests of the Circular they are not a “wish” list

• More conditions do not make the development more acceptable

• Making condition more complicated does not make it more enforceable

• Standard conditions are just a guide!

Planning Enforcement

Here to help

REASONS FOR DECISIONS

Gareth Jones

D C Manager

What Reasons?

- Approval

- Conditions

- Refusal

Why are they so important to get right?

Reason for refusal:

Three ingredients. Identify:

- The ‘harm’ caused and to whom

- The source of the identified ‘harm’

- The development plan policy conflict

Reason for approval:

• Approval / refusal reasons are two sides of the same coin,

• So the construction of an approval reason is the same as the refusal

• However the material considerations covered must be more comprehensive

Reasons for conditions:

• Key ingredients:

- Justify the condition (six tests)

- Citing the relevant Policy

Putting it into practice...