A “tailpiece” condition on a planning permission is a condition that is qualified by final wording such as “without the prior written consent of the local planning authority”. By purporting to allow the authority to relax the condition, it seeks to incorporate a degree of flexibility and possibly obviate the need for a subsequent application for a variation of the condition. But in principle a “tailpiece” condition offends planning law. It may make uncertain what was permitted; it may enable development that has not been applied for, assessed or permitted to occur; it may sidestep the statutory process for granting permission and varying conditions.
Decided cases support the following propositions: (1) The “tailpiece” will generally be lawful if its scope is limited to changes that are immaterial in the sense that no reasonable authority could refuse them. (2) If the purpose of the “tailpiece” is to enable development different in scale or impact to that applied for to take place, the tailpiece will be unlawful. (3) An unlawful “tailpiece” can be excised if in the linguistic and planning senses it is severable. (4) Where the condition as a whole has to be quashed, then if it is of central importance to the planning permission that also may have to be quashed.
A “tailpiece” condition on a planning permission is a condition that is qualified by final wording such as “without the prior written consent of the local planning authority”. By purporting to allow the authority to relax the condition, it seeks to incorporate a degree of flexibility and possibly obviate the need for a subsequent application for a variation of the condition. But in principle a “tailpiece” condition offends planning law. It may make uncertain what was permitted; it may enable development that has not been applied for, assessed or permitted to occur; it may sidestep the statutory process for granting permission and varying conditions.
Decided cases support the following propositions: (1) The “tailpiece” will generally be lawful if its scope is limited to changes that are immaterial in the sense that no reasonable authority could refuse them. (2) If the purpose of the “tailpiece” is to enable development different in scale or impact to that applied for to take place, the tailpiece will be unlawful. (3) An unlawful “tailpiece” can be excised if in the linguistic and planning senses it is severable. (4) Where the condition as a whole has to be quashed, then if it is of central importance to the planning permission that also may have to be quashed.
In R (on the application of Halebank Parish Council) v Halton Borough Council [212] EWHC 1889 (Admin) planning permission had been granted for a storage and distribution warehouse providing 110,769 sq m of floorspace. “Tailpiece” conditions were imposed relating to a scheme of noise attenuation and mitigation, a scheme of off-site works to provide vehicular access to and egress from the site and the construction of a dedicated rail siding. Their lawfulness or otherwise was one of the issues for the court.
The judge concluded that the “tailpiece” conditions all related to matters of significance that could have a permanent effect on the control of potential environmental impacts, and the way in which the warehouse would function in land use terms. The public had a strong interest in being able to comment on such matters. The “tailpiece” conditions were therefore unlawful. However, it was common ground between the parties that the “tailpieces” were capable of being excised. Accordingly, the court ordered their excision, so allowing the conditions in their amended form to stand.
John Martin is a freelance writer.
