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.
Earlier judicial authority supports 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 Thomas v Carmarthenshire Council [2013] EWHC 783 (Admin), the claimant challenged the grant by the local planning authority of retrospective planning permission for the use of land as a coach depot. One of her grounds focused on a “tailpiece” condition imposing the stipulation that “No use within the application site shall be extended or intensified without the prior approval of the local planning authority”. She contended that – in theory at least – intensification in an existing use can be found to be a material change of use.
The court, while otherwise refusing the application, excised the whole of the tailpiece condition. (It held that it was unarguable that the existence of the condition rendered the whole planning permission unlawful or void.) The judge concluded that, while there was little risk in practice that the condition could be used in such a way as to evade the need for planning permission, there was still a risk of uncertainty in relation to its construction. Equally, there was also the question whether it was a necessary condition.
John Martin
