The legal test for the validity of a planning condition is well established. For a condition to be lawful it 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.
As a matter of policy, Circular 11/95 – The Use of Conditions in Planning Permission separately sets out a six-fold test that the Secretary of State considers should be met on each occasion when a planning condition is imposed. This reflects the legal test for validity, but adds in requirements such as necessity and effectiveness. The Circular, in referring to necessity, advises that a condition ought not to be imposed unless there is a need for it, and that the argument that a condition will do no harm is no justification for its imposition.
In R (on the application of Champion) v North Norfolk District Council [2013] EWCA Civ 1657; [2013] PLSCS 317 the local planning authority (“LPA”) had granted planning permission for commercial development on a site that was close to a river that was both an SSSI and a SAC. Objectors were concerned that pollution from the proposed development would enter the river. The LPA had concluded that there was no requirement for an environmental impact assessment, nor an appropriate assessment (for the purpose of the Habitats Directive). However, it went on to impose conditions that would require monitoring of water quality, with the developer taking “all reasonable steps” if water quality was found to diminish due to the development.
The main issue for the Court of Appeal was whether the LPA’s decision to grant planning permission, subject to those conditions, was internally inconsistent and irrational. The argument was advanced that, having concluded that the omitted assessments were not required, this must have meant that the LPA had decided that there was no risk of the river being polluted by the development. However, the imposition of the additional conditions – against the background of the necessity test – could only mean that the LPA considered that there was a risk of pollution.
The Court of Appeal rejected that argument, holding that there was no inconsistency between the two positions adopted by the LPA. Furthermore, the LPA could properly consider that the conditions were necessary as a precautionary measure for the purposes of reassurance, without considering that in their absence there was a likelihood that pollutants would enter the river.
John Martin
