UK historic tests on the Validity of Conditions

On a number of occasions, the UK High Court has laid down general criteria for the validity of planning conditions. Conditions should not be imposed unless they are both necessary and effective, and do not place unjustifiable burdens on applicants. Conditions should only be imposed which are:

Necessary

In considering if a particular condition is necessary authorities should ask themselves whether planning permission would have to be refused if that condition were not imposed.

If planning permission would not have been refused then the condition will need special and precise justification. It may be helpful to ask whether it would be considered expedient to enforce against a breach — if not, the condition may well be unnecessary.

The argument that the condition will do no harm is no justification for its imposition; a condition should not be imposed unless there is a definite need for it.

Conditions should be tailored to specific problems rather than imposed as wide ranging controls. In so far as a condition is wider in its scope than is necessary to achieve the desired objective, it will fail the test of need.

Relevant to Planning

A condition which has no relevance to planning is Ultra Vires (ie beyond one’s legal power or authority). For example, a condition which states that the first occupants of a dwelling must be selected from the Local Authority’s housing waiting list would be improper because it was imposed to meet the needs of the Local Authority as a housing authority and not imposed for planning reasons.

Some matters are the subject of specific controls elsewhere in planning legislation (e.g. advertisements); if these controls are relevant the authority should normally rely on them and not impose conditions which seek to achieve a separate system of control.

Other matters are subject to controls under separate legislation (e.g. health and safety, control of noise from building sites, etc.) yet are also of concern to the planning system. A condition which duplicates the effect of other controls will be unnecessary and one whose requirements conflict with those other controls will be Ultra Vires because it is unreasonable.

A condition cannot be justified on the grounds that the Local Authority is not the body responsible for exercising a concurrent control and therefore cannot ensure that the control will be properly exercised. Nor can a condition be justified on the grounds that a concurrent control is not permanent but is subject to expiry and renewal (e.g. certain licences).

A planning condition would not normally be appropriate to control the level of emissions from a proposed development where they are subject to a statutory pollution control regime e.g. IPC or IPPC Environmental Protection Act 1990 — see PPG 23 Planning and Pollution Control.

Conditions may be justified where they can prevent a development being carried out in a manner which would be likely to give rise to onerous requirements under other powers at a later stage (e.g. noise insulation conditions).

Relevance to the Development to be Permitted

Unless a condition fairly and reasonably relates to the development to be permitted it will be Ultra Vires. It is not sufficient that a condition is related to planning objectives; it must also be called for by the nature of the development to be permitted or its effects on its surroundings. For example, if a planning permission is being granted for the alteration of a factory building it would be unreasonable to impose conditions requiring the provision of car parking to the existing buildings simply to meet a need that already exists; the need for that action is not created by the new development

Conditions can however be relevant where they do not directly affect the proposed development, but the need for them arises out of the effects of the development, e.g. where permission will result in the intensification of an industrial use of a site, a condition may be necessary requiring additional noise mitigation to the existing factory buildings or plant.

Ability to Enforce

A condition should not be imposed which cannot be enforced. It is often useful to consider what means are available to secure compliance with a proposed condition.

Precision in the wording of conditions may be vital when it comes to enforcement.

Sometimes a condition will be unenforceable because in practice it is impossible to detect an infringement, more commonly it will be merely very difficult to prove a breach of the requirements of the condition, e.g. a condition imposing a limiting noise at a specific location to a level below the existing background noise level would be impractical to monitor and would pose severe difficulties in proving an infringement.

However where a condition is intended to prevent harm to the amenities of area, e.g. a condition requiring an amusement centre to close at a certain time in the evening, it would not usually be difficult to monitor and those affected by contraventions of the condition’s requirements are likely to be able to provide clear evidence of any breaches.

There are two provisions which authorities may use to enforce conditions – an enforcement notice under section 172 of the Act, or a breach of condition notice under section 187(A).

Precision

The framing of the wording of any condition requires care, not least to ensure that it is enforceable. A condition which required only that “…a noise insulation scheme shall be submitted for the approval of the Local Authority” is incomplete, since if the applicant were to submit a scheme and even obtain approval for it, but neglect to carry it out, it is unlikely that the local planning authority could actually require that the scheme be implemented.

The condition should contain a clearly stated requirement stating that the noise insulation is to be carried out in accordance with the approved scheme.

A condition of this kind also sets no requirement as to the time or the phase of development by which the noise insulation should be completed; this can also lead to enforcement difficulties. Conditions which require specific works to be carried out should also state clearly when they should be completed, e.g. “…all such approved works to be completed before the building is first occupied’.

A condition which is not sufficiently precise for the applicant to be able to ascertain what he/she must do to comply is Ultra Vires and cannot be imposed. Vague expressions such as “. . . so as not to cause annoyance to local residents” should not be used.

Two important principles were established in the Court of Appeal judgment in the case of Handoll & Others v Warner Goodman and Streat & Others 1995:

(i) where operational development is carried out in a way which differs materially from approved plans, it amounts to development without the benefit of planning permission; and
(ii) any conditions imposed on the planning permission for those operations are unenforceable because the particular planning permission has not been implemented.

Reasonableness

A condition can be Ultra Vires on the grounds of unreasonableness even though it might be precisely worded and apparently within the powers available.

It may be unreasonable because it is unduly restrictive, e.g. it would normally be reasonable to restrict the hours during which an industrial use may be carried on if the use of those premise outside the stated hours would affect the amenities of the neighbourhood, but it would be unreasonable to do so to such an extent as to make it impossible for the occupier to run his/her business properly.

If it appears that a permission could only be given subject to conditions that would be likely to be held unreasonable by the courts then it will be necessary to refuse planning permission altogether.

It is unreasonable to impose a condition which the developer would be unable to comply with by himself, or which he/she could comply with only with the consent or authorisation of a third party. (This may however be the substance of a legal agreement, known as a Section 106 agreement, i.e. an agreement authorised by Section 106 of Part 3 of the Town and Country Planning Act 1990)

An unreasonable condition does not become reasonable merely because the applicant suggests it or consents to its terms.

Conditions which require the applicant to obtain an authorisation from another body such as the Environment Agency should not be imposed.