by Thomas Graham
Planning conditions are often drafted swiftly and it is, therefore, not surprising that drafting errors arise from time to time. This article examines a common pitfall. All the examples used are adapted from real-life cases; it is to be hoped without distortion.
Let us assume that a local planning authority imposes the following conditions:
Approval of the details of the siting, design and external appearance of the buildings, the means of access thereto and the landscaping of the site (hereinafter called “the reserved matters”) shall be obtained from the local planning authority.
(2) Application for approval of the reserved matters shall be made to the local planning authority before the expiration of three years from the date of this planning permission.
(3) The development hereby permitted shall be begun either
(a) before the expiration of five years from the date of this permission; or,
(b) before the expiration of two years from the date of approval of the last of the Reserved Matters to be approved, whichever is the later.
Treated in isolation, there is no particular difficulty with this combination of standard conditions. The effect of condition (3) is, of course, that failure to begin the development within the time-limits which it specifies causes the permission to lapse (see sections 92 and 93 of the Town and Country Planning Act 1990). The authority then add further conditions:
(4) Before any work is commenced on the development:
(a) Details of a phased programme for the carrying out of the development shall have been submitted to and approved by the local planning authority; and
(b) Drainage works shall have been carried out in accordance with details to be submitted to and approved by the local planning authority; and,
(c) A scheme for structural landscaping of the site shall have been submitted to and approved by the local planning authority.
The pitfall
In due course, all reserved matters could be approved in accordance with condition (3), but that approval of the phasing programme, drainage works or landscaping scheme still remains outstanding after the expiration of the later of the two periods mentioned in condition (3). Then, the whole permission could be frustrated.
The developer is in a dilemma. If he commences the development, then he is in breach of condition. If he fails to commence the development, then the planning permission will lapse.
Although involving a planning agreement, L A Ames Ltd v North Bedfordshire Borough Council [0] JPL 183 exemplifies the difficulty. There, a builder desired to erect 81 houses, but the local sewerage system was inadequate. Sewerage improvements were due to take place in 1975. In 1974 the council granted planning permission after the builder had entered into a section 52 agreement which precluded commencement of the development until the sewerage improvements were “placed in contract”. The permission included a condition requiring commencement of the development within three years, but the water authority failed to contract for the sewerage improvements during that period. The builder honoured the agreement and failed to commence the development. The Court of Appeal held that the permission was lost.
Suggested remedies
The General Development Order (GDO) provides that, where an application has been made for any consent, agreement or approval required by, inter alia, a planning condition then the applicant has a right of appeal to the Secretary of State if the decision is not made within the statutory period: see article 26(2)(b) of the GDO and section 78(2) of the 1990 Act.
There are, however, two problems. First, the fact that an appeal has been filed under article 26(2)(b) does not stop time running in respect of section 92 time-limits. Second, developers are, often, keen to resolve matters by discussion. The sensible developer should therefore make applications for approval in duplicate, then appealing one upon expiry of the statutory period while keeping the duplicate “on the table” for negotiation with the local authority.
An alternative is to consider whether each additional matter is, in reality, a “reserved matter”. It is difficult to see how either drainage or phasing arrangements fall within “reserved matters” in article 2 of the GDO; however, they could, arguably, fall within section 92(1) of the 1990 Act which defines “reserved matters” as “matters not particularised in the application”. But “landscaping of the site” is, clearly, a reserved matter and should not be repeated in condition (4). There is no logical reason why a “structural” landscaping scheme should be treated differently from other landscaping.
Another approach is to remove the embargo on the commencement of development. There is, often, no good reason, why such conditions should not prescribe that the development “shall be carried out” in accordance with the matters to be subsequently approved, leaving the developer free to commence those parts which have no bearing on these matters. Take, for example, model condition 10 in Appendix A of Circular 1/85:
(10) Development shall not begin until a scheme for protecting the proposed dwellings from noise from the….road has been submitted to and approved by the local planning authority…
As stated, the model conditions “are only models, and may need adaptation to the circumstances of particular cases”. If, for example, access to, or drainage of, the development is settled and has no bearing upon the noise attenuation scheme, then there is no good reason to prevent an immediate start to those settled matters. Para 39 of Circular 1/85 advises that authorities should seek to ensure, where possible, that conditions other than those relating to reserved matters are self-contained and do not require further approvals before development can begin.
Conclusion
A lawyer criticises planning conditions at his peril. He will be met by many responses. The truth is that drafting points are taken regularly during negotiations, in appeals and in the High Court.
