PP 2009/109

Section 70(1) of the Town and Country Planning Act 1990 appears to give a local planning authority an unlimited power to impose conditions on the grant of planning permission. However, the power is limited both in terms of the legal tests for validity laid down by the courts and of central government policy. For instance, the latter requires that conditions should be necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects: see DOE Circular 11/95 – The Use of Conditions in Planning Permissions. As far as reasonableness is concerned, the circular warns, inter alia, that a condition requiring the carrying out of works on land outside the application site cannot be imposed unless the authority is satisfied that the applicant has sufficient control over the land to enable those works to be carried out. In Davenport v Hammersmith and Fulham London Borough Council [1999] 2 PLR 96, Richards J stated that, in such circumstances, the condition would be unlawful. However, in R (on the application of the Friends of Hethel Ltd) v South Norfolk District Council [2009] EWHC 2856 (Admin); [2009] PLSCS 312, the court adopted a somewhat less strict approach to that principle. In Hethel, objectors sought judicial review of the grant of planning permission for a wind turbine development on a number of grounds. The planning permission contained conditions requiring the developer to take noise measurement readings at certain locations and to minimise “shadow flicker” and interference with TV reception. One of the grounds of challenge was that these conditions were unreasonable, and therefore unlawful, because they required works to be carried out on off-site land that was not under the developer’s control. Furthermore, the land in question was not subject to any public right of access. The court referred to Davenport and the principle to which Richards J had referred. It stated, however, that the principle had to be interpreted in the light of everyday realities. Where the basis of planning conditions was the protection of residential amenity, it was not unreasonable to adopt conditions that included access to a third-party land to assess and remedy a complaint. Such conditions were rational because it could ordinarily be assumed that objectors who complain would allow access so that the source of the problem could be addressed. If they complained, but denied access to remedy the complaint, the authority could lawfully refuse to take steps to enforce the condition. Accordingly, the court rejected this ground of challenge. The other grounds of challenge were equally unsuccessful, as far as the claim sought the quashing of the planning permission, although one resulted in the court granting token declaratory relief. John Martin is a freelance writer