Section 70(1) of the Town and Country Planning Act 1990 empowers a local planning authority (“LPA”) to grant planning permission “either unconditionally or subject to such conditions as they may think fit”. It has often been pointed out that they may be imposed not only to enhance the quality of the development but also to ameliorate any adverse effects that might otherwise flow from it. They can often enable development proposals to proceed, where otherwise it may have been necessary to refuse planning permission.
It goes without saying that careful drafting is essential. In particular, in the case of operational development, it should be made clear whether a condition relates solely to the construction of the development or to that and its subsequent use.
Section 70(1) of the Town and Country Planning Act 1990 empowers a local planning authority (“LPA”) to grant planning permission “either unconditionally or subject to such conditions as they may think fit”. It has often been pointed out that they may be imposed not only to enhance the quality of the development but also to ameliorate any adverse effects that might otherwise flow from it. They can often enable development proposals to proceed, where otherwise it may have been necessary to refuse planning permission.
It goes without saying that careful drafting is essential. In particular, in the case of operational development, it should be made clear whether a condition relates solely to the construction of the development or to that and its subsequent use.
In R (on the application of TWS) v Manchester City Council [2013] EWHC 55 (Admin) the claimant sought unsuccessfully to quash the decision of the LPA to grant planning permission for the development of a sports stadium with a capacity of 5,000 spectators, a clubhouse, sports pitches, car parking and landscaping. Condition 2 on the permission required the development “to be carried out in accordance with” a number of supporting plans and documents.
One of the main grounds of challenge was that the LPA had erred in law by failing to impose a condition placing specific limits on the number of days and hours of use of the stadium. The development proposals had not been framed that way, but the supporting documents, which included planning and design and access statements together with transport and noise assessments, had referred to likely use of the stadium for approximately 30-50 days a year and for the use of other parts of the development as a community facility for over 300 days a year.
The court rejected that contention, holding that the expression “carried out” in condition 2 should be construed, in the circumstances, not in the narrow sense to mean “constructed” but rather to mean “constructed and used”. This was clear from the content of the supporting documents. Furthermore, whether the conditions were adequate was essentially a matter of planning judgment for the LPA, to be impugned only on traditional Wednesbury grounds.
This was very much an instance when a specific condition might have been more thoughtfully worded, and the cost of litigation on the point avoided.
John Martin
