Discharging Planning Conditions
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When councils grant planning permission it is almost always subject to conditions, which can cover a wide range of issues. They can have implications for the timing and cost of your project, and can even influence whether you can build at all.
It’s essential you’re aware of what they cover, when they’re imposed, how to comply with them and how to remove or appeal against them. So, here we’ll have a look at conditions in general first, and then go on to analyse some specific ones in greater depth.
Conditions are generally aimed at ensuring the development proceeds as planned, to mitigate any potentially harmful effects and to gather and approve additional information on specific subjects, such as materials, landscaping, drainage and so on. They can be attached to both full and outline planning permissions, and to the approval of so-called ‘reserved matters’ that follow on from an outline permission.
The government sets out its stance on conditions in the National Planning Policy Framework. This is fleshed out in greater detail in the planning practice guidance.
There are six tests that all conditions should meet: they must be necessary to make the development acceptable, directly related and relevant to the development and to planning; and they must be enforceable, precise and reasonable in all other respects.
The guidance seeks to limit the use of conditions, but some councils routinely impose far more than others. Have a look at two or three decision notices for the type of development you’re proposing to see what approach yours takes.
Conditions that ask for additional details to be submitted and approved by the council are worded to ensure compliance at certain stages of your scheme. Typically these will be prior to commencement; prior to getting beyond slab level; prior to completing the build; or prior to first occupation.
Conditions that need to be dealt with before commencement can delay the start of your project, so it’s wise to crack on with getting them approved (or discharged, to use the planning jargon). There are moves to restrict pre-commencement stipulations, and more councils are now adopting wording that refers to progress beyond slab level, enabling works to commence while the conditions are being discharged.
If you want to be released from a particular condition, you have to make a formal application to the council, attaching the required information and paying a fee – currently £97 for a new house and £28 for an existing house. The charge is imposed per submission, so if you’ve several conditions to deal with, it’s best to lump them together in one application. Straightforward requests should be decided within 21 days, but there’s a maximum wait time of eight weeks (unless a longer period is agreed). Where a council drags its heels, there is a procedure by which you can secure a so-called deemed discharge.
If permission is granted subject to a condition that you don’t think meets the requirements of the six tests, you can apply to have it removed or varied. This procedure attracts a £195 fee and will be treated by the council as a planning application. Regardless of the outcome, the original permission will remain intact and it is just the condition that is removed or varied. If the council refuses to retract or alter the condition, there is a right of appeal, but this is risky: in these circumstances the whole permission can be reconsidered, and might even be refused.
If permission is granted subject to a condition that you don’t think meets the requirements of the six tests, you can apply to have it removed or varied. This procedure attracts a £195 fee and will be treated by the council as a planning application. Regardless of the outcome, the original permission will remain intact and it is just the condition that is removed or varied. If the council refuses to retract or alter the condition, there is a right of appeal, but this is risky: in these circumstances the whole permission can be reconsidered, and might even be refused. Windows from the Heritage collection by Mumford & Wood were used for the refurbishment of this listed building; planners and conservation officers will want to ensure that replacements are historically in-keeping.
If you’ve failed to comply with a qualifying stipulation, the council is able to issue a breach of condition notice. This requires the violation to cease within a specified timescale. There’s no right of appeal, and failure to observe the notice can result in a visit to the local magistrates.
The vast majority of planning consents (with the exception of retrospective applications) come with a standard condition indicating that the permission lasts for three years.
Many councils also routinely impose a condition detailing the approved plans and stating the development must be completed in accordance with them. Here are some of the other key areas where stipulations might be made for your project:
Conditions dealing with materials vary significantly. Some might require external finishes to match the existing house (for extensions) or to comply with descriptions on plans. Or there may be a specific requirement for samples of bricks, tiles, windows etc to be delivered to the council for approval prior to commencement of the works.
Check how the local authority expects materials to be presented for approval: some will accept web links to brochures showing the relevant products, while others will want samples made available for inspection on site.
You might face conditions covering both hard and soft landscaping. The former could include hard surfaces, walls and steps; and the latter trees, shrubs and lawns. Again, the amount of detail required can vary. Planting plans and schedules might have to include numbers of plants, their spacing, size of pots and the height to which they’ll grow.
3. Removal of permitted development rights
When granting a planning consent, many councils will remove some or all the permitted development (PD) rights that would otherwise allow future extensions or alterations.
Government guidance on the subject says that this policy should only be used in exceptional circumstances, yet it is routinely applied in some areas. The practice could, and probably should, be challenged more often.
4. Ecology & archaeology
Where the council has identified potential for your scheme to impact on archaeological or ecological interests, it can use conditions to require you to commission surveys or investigative reports and agree any action to mitigate harm. These can be troublesome, partly because of the cost of getting them done, but also because of the delays that can result if anything significant is found. For those converting rural buildings, or demolishing old properties, bat surveys are likely to be required. These can only be undertaken in the summer, when the bats are active. Similar issues arise with other protected species, such as reptiles and great crested newts. A common condition is that sightlines onto the main highway need to be kept open. Here, low stepped walls help to maintain good visibility.
5. Access & parking
You may be asked to submit for approval the details of visibility splays (the sightlines onto the main carriageway from your driveway). You’ll also probably need to provide a commitment that they will be maintained in the future. If you have doubts about your ability to fulfil such conditions, it’s best to liaise with the local highway authority to see whether an agreement can be reached. Detailed plans of parking and turning spaces might be asked for if insufficient detail has been presented in the application. Ensure your plans comply with local standards.
Particulars of foul and surface water drains are often sought, especially where connections to mains services are not available. Take advice from a reputable supplier of private sewerage systems to ensure your proposed system is suitably located and of adequate capacity.
If site contamination is suspected, for example where industrial premises are being converted or replaced, the council will want to ensure a survey is undertaken. If an issue is found, it will need to be thoroughly investigated and a suitable remediation plan agreed and implemented. This may involve the digging of trial pits, laboratory analysis and removal of contamination for safe disposal. Costs and delays during this process can be considerable.
Please CONTACT US for a free no obligation consultation or email me on email@example.com. I look forward to talking through any planning conditions you may need our assistance with.