The test for the lawfulness of a condition imposed in granting planning permission was summarised by Viscount Dilhorne in Newbury District Council v Secretary of State for the Environment [1981] AC 578 HL. In essence, the condition must (1) be imposed for a planning purpose and not for an ulterior one (2) fairly and reasonably relate to the development permitted, and (3) not be so unreasonable that no reasonable authority could have imposed it.
That test is reflected in, and extended by, paragraph 206 of the NPPF and in Planning Practice Guidance. Both add the requirements of necessity, enforceability and precision, and both constitute material considerations on the determination of a planning application.
Where a condition is held to be invalid at law, the whole planning permission is void ab initio unless the condition can be shown not to be fundamental to the planning permission. In that case, it can be severed leaving the planning permission intact.
In R (on the application of Carter) v City and County of Swansea [2015] EWHC 75 (Admin) the claimant sought to quash the grant of planning permission by the local planning authority (“LPA”) for a wind farm, together with a 14km access track that crossed water courses and a public water main running through the application site. The claimant’s subsidiary grounds of challenge were that the conditions imposed by the LPA to protect the water courses and the water main were unlawful, in each case rendering the planning permission void.
He contended specifically that there was no evidence before the LPA that measures were available which were capable of meeting the planning objections that the conditions were intended to address, with the result that the LPA could not have formed the view that the conditions were necessary and reasonable.
The court dismissed the claim, holding in this respect that the conditions were not unlawful. They satisfied the Newbury test. Furthermore, while the imposition of a condition that the LPA knew could not – in practical terms – be fulfilled might be irrational, the LPA did not have to have positive evidence that a condition could be met before imposing it, if it was otherwise necessary and reasonable for proper planning purposes. Finally, the local water authority had insisted upon the two conditions under challenge, failing which it would have refused to withdraw its objections to the proposals. For that reason also, their imposition could not be viewed as irrational.
John Martin is a planning law consultant
