In Grampian Regional Council v Aberdeen District Council [1984] JPL 590, the House of Lords while recognising that a positive planning condition requiring something to be done that was not within the control of the applicant could not be validly imposed held nevertheless that a planning condition in negative form preventing development proceeding unless and until a specified event had occurred could be.
Ten years later, in British Railways Board v Secretary of State for the Environment [1994] JPL 32, the House of Lords went on to hold that such a negative condition could still be validly imposed, despite the fact that it appeared to have no reasonable prospect of fulfilment within the time limit of the planning permission. What, by then, had become known as Grampian-type conditions were to have an obvious appeal to developers since resort to such a condition might avoid the refusal of planning permission.
Where confusion has arisen is in the context of the Secretary of States policy in relation to their use. As originally drafted, the advice in paragraph 40 of the annex to Circular 11/95: The Use of Conditions in Planning Permissions was that as a matter of policy a Grampian type condition should not be used unless there are at least reasonable prospects of the action in question being performed before the time limit imposed upon the planning permission. However, by means of an ODPM letter dated 25 November 2002, that advice was amended to read that such a condition should not be imposed when there are no prospects at all of the action being performed within the time limit.
In FCC Environment v Secretary of State for Communities and Local Government [2014] EWHC 2035 (Admin), the claimant sought to quash the decision of an inspector on a planning appeal refusing planning permission for a single wind turbine. A principal issue was an objection by the MOD on the ground that the development would cause significant harm to the operation of a nearby radar station. The inspector concluded that there was no evidence to establish that a technological solution to mitigate that harm adequately would become available within the time limit for implementation, and so he refused to impose a Grampian-type condition.
The court dismissed the claim, holding in this respect that the inspector had not erred in fact, law and policy in relation to the imposition of such conditions, and that his reasons for refusing to impose one were entirely adequate.
John Martin is a planning law consultant
