Plan­ning Con­di­tions Ex­plained

You’ve just been granted plan­ning per­mis­sion, surely it’s time to cel­e­brate? Not nec­es­sar­ily says plan­ning con­sul­tant Ken Di­jks­man, who ex­plains why the con­di­tions im­posed as part of your per­mis­sion may need care­ful ex­am­i­na­tion

Homebuilding & Renovating - - CONTENTS -

You’ve just ob­tained plan­ning per­mis­sion for your build­ing project, surely it’s time to cel­e­brate? Not nec­es­sar­ily, says plan­ning con­sul­tant Ken Di­jks­man, who ex­plains the im­por­tance of ex­am­in­ing the plan­ning con­di­tions at­tached to your per­mis­sion

“This is the key point: you have plan­ning per­mis­sion, but it is sub­ject to all the con­di­tions at­tached to it and fail­ure to dis­charge them can ren­der that per­mis­sion void”

After all the has­sle, ex­pense, un­cer­tainty and frus­tra­tion of deal­ing with ob­jec­tion­able neigh­bours and per­haps sev­eral dif­fer­ent plan­ning of­fi­cers, you are fi­nally hold­ing your pre­cious plan­ning per­mis­sion in your hand. Surely the bat­tle with bureau­cracy is over and you can just get on with build­ing the house of your dreams? Is it time to cel­e­brate and crack open the bub­bly? Yes, but only have one glass be­cause it’s not over yet. You have just joined the ranks of what the me­dia likes to de­scribe as a devel­oper who is ‘land­bank­ing’ — in other words, you have a plan­ning per­mis­sion to build a house, but you are not able to start build­ing yet.

Quite apart from the need to meet Build­ing Reg­u­la­tions and to agree the tech­ni­cal de­tails of how you build your new house or ex­ten­sion, you now need to ap­ply to dis­charge the in­evitable plan­ning con­di­tions that are at­tached to the plan­ning per­mis­sion it­self.

What are Plan­ning Con­di­tions?

The whole world of plan­ning is se­ri­ously mis­un­der­stood, and nowhere is this more ob­vi­ous than when peo­ple talk about ‘hav­ing plan­ning per­mis­sion’.

Yes, you now have the right to build a house or ex­ten­sion, and if you have a de­tailed plan­ning per­mis­sion, its de­sign and sit­ing are all agreed. But al­most in­evitably there will be fur­ther de­tails that need to be sub­mit­ted and for­mally agreed by the lo­cal plan­ning au­thor­ity. For a ma­jor de­vel­op­ment these plan­ning con­di­tions could take an­other cou­ple of years to re­solve. As a self-builder with only one

plot, or as an ex­ten­der, these ad­di­tional de­tails should (ide­ally) be agreed within a cou­ple of months.

It is im­por­tant to un­der­stand that some con­di­tions must be dealt with be­fore you start the de­vel­op­ment. Fail­ure to com­ply with these ‘pre-com­mence­ment’ con­di­tions can, in some cases, re­sult in the plan­ning per­mis­sion be­ing de­clared un­law­ful. While other con­di­tions must be dealt with prior to the oc­cu­pa­tion of the house, some are there to place re­stric­tions on what you can do in the fu­ture.

To give one ex­am­ple of a typ­i­cal plan­ning con­di­tion: all plan­ning per­mis­sions ex­pire and have an end date by which de­vel­op­ment must have started.

So a plan­ning per­mis­sion will nor­mally in­clude a con­di­tion stat­ing that de­vel­op­ment must com­mence within three years of the date it was granted.

An­other com­mon con­di­tion is that the ex­ter­nal ma­te­ri­als to be used should be agreed by the lo­cal plan­ning au­thor­ity be­fore work starts on site. Some lo­cal plan­ning au­thor­i­ties ask for de­tails, while oth­ers ask for sam­ples of your pro­posed bricks and roof tiles.

An­other ex­am­ple is a con­di­tion that re­quires a land­scape plant­ing scheme to be sub­mit­ted (and agreed) and im­ple­mented in the next plant­ing sea­son fol­low­ing the com­mence­ment of the de­vel­op­ment. It’s also quite com­mon to see a plan­ning con­di­tion that re­quires the sub­mis­sion de­tails of the pro­posed ac­cess to a site that will demon­strate min­i­mum vis­i­bil­ity splays in each di­rec­tion to en­sure that peo­ple en­ter­ing and leav­ing can do so safely. This is one of the

most im­por­tant and risky con­di­tions be­cause you may as­sume that be­cause plan­ning per­mis­sion has been granted the site ac­cess ar­range­ments are sat­is­fac­tory. But ac­cess con­di­tions can re­quire the sub­mis­sion of tech­ni­cal draw­ings, and fail­ure to prove that you con­trol the land nec­es­sary to de­liver the nec­es­sary vis­i­bil­ity could pre­vent the plan­ning per­mis­sion be­ing im­ple­mented.

This is the key point: you have a plan­ning per­mis­sion, but it is sub­ject to the re­quire­ments of all the con­di­tions at­tached to it and fail­ure to dis­charge them can ren­der that per­mis­sion void. So be­fore agree­ing to buy a site, or com­plet­ing on the pur­chase, it is es­sen­tial that you are sat­is­fied that the var­i­ous plan­ning con­di­tions can be com­plied with.

One of the big crit­i­cisms of plan­ning con­di­tions is that they in­volve de­lay. This is es­pe­cially true where ex­tra de­tails are sought re­gard­ing ecol­ogy, and where eco­log­i­cal sur­veys, ar­bori­cul­tural as­sess­ments and tree pro­tec­tion plans may be re­quired. Plan­ning con­di­tions can also be very ex­pen­sive — a brief con­di­tion re­quir­ing the sub­mis­sion of an ar­chae­o­log­i­cal assess­ment and pro­gramme for ex­ca­va­tion could cost tens of thou­sands.

Some con­di­tions, on the other hand, are very straight­for­ward and are there to help pro­tect neigh­bour­ing homes. For in­stance, a con­di­tion may stip­u­late that par­tic­u­lar win­dows are ob­scure glazed to pro­tect neigh­bours’ pri­vacy, or may re­quire the erec­tion of a fence be­tween two prop­er­ties.

Sim­i­larly, a con­di­tion may re­quire a plan­ning ap­pli­ca­tion to be made for fu­ture de­vel­op­ment. More specif­i­cally, the prop­erty’s Per­mit­ted De­vel­op­ment rights may have been re­moved as a con­di­tion, or a con­di­tion could re­quire the re­ten­tion of park­ing spa­ces or pre­vent the con­ver­sion of a garage. It’s im­por­tant you bear these things in mind be­cause they might im­pede your fu­ture plans.

You may come across a house in the coun­try­side that is sur­pris­ingly cheap, only to dis­cover that it has an agri­cul­tural oc­cu­pancy re­stric­tion. This is a plan­ning con­di­tion that re­quires that the oc­cu­pants of the house work in agri­cul­ture, and fail­ure to com­ply with that can re­sult in en­force­ment ac­tion, and ul­ti­mately pros­e­cu­tion.

HOW DO I DIS­CHARGE THE CON­DI­TIONS?

This may all sound pretty scary but, in most cases, plan­ning con­di­tions just need to be dealt with. A form en­ti­tled ‘Ap­pli­ca­tion for ap­proval of de­tails re­served by con­di­tion’ will need to be filled out; you quote your per­mis­sion ref­er­ence, the con­di­tion num­ber and sub­mit what­ever it is they have asked for. The lo­cal au­thor­ity then (in the­ory) has eight weeks to agree or refuse the sub­mit­ted de­tails. In prac­tice, the length of time a lo­cal plan­ning au­thor­ity will take can vary dra­mat­i­cally de­pend­ing on the scale and com­plex­ity of the per­mis­sion and the at­ti­tude of the plan­ning of­fi­cers. For an ex­ten­sion or self-build plot, eight weeks should be the max­i­mum time they need to work with you to agree what­ever is nec­es­sary.

A fee is payable for ev­ery ap­pli­ca­tion to ap­prove the de­tails. The fee for the ap­proval of con­di­tions at­tached to a house­holder ap­pli­ca­tion (for ex­am­ple, ex­ten­sions) is £34; for a new sin­gle dwelling it’s £116.

It’s a very good idea to sub­mit de­tails in re­la­tion to all the plan­ning con­di­tions at the same time, as you’ll then only pay one fee. If you sub­mit them sep­a­rately you pay a fee to clear each con­di­tion — costs could soon mount up!

HOW CAN I EN­SURE PLAN­NING SUC­CESS?

The worst-case sce­nario is that the lo­cal plan­ning au­thor­ity re­fuses to agree with what you sub­mit. For ex­am­ple, they might not agree the ma­te­ri­als you want to use. In this case you can ei­ther try and ne­go­ti­ate an al­ter­na­tive, or you can lodge an ap­peal, which is dealt with in the same way as a nor­mal plan­ning ap­peal and could take six months to re­solve, with no guar­an­tee of suc­cess.

As such, my ad­vice is that you should at­tempt to re­duce the num­ber of con­di­tions at­tached to your per­mis­sion to the bare min­i­mum in the first in­stance. To take an easy ex­am­ple: if dur­ing the ap­pli­ca­tion process you talk to the plan­ning of­fi­cer about the ma­te­ri­als you want to use and they agree them, this can be used to avoid the need to im­pose a con­di­tion on re­quest­ing sam­ples. A con­di­tion can be drafted to re­quire that you use those ma­te­ri­als. This does re­quire a help­ful and pos­i­tive plan­ning of­fi­cer — and con­trary to pop­u­lar be­lief they do ex­ist!

This ap­proach can also work with is­sues like tree pro­tec­tion plans, ac­cess and high­way de­tails and land­scape draw­ings. If you pro­vide as much de­tail as pos­si­ble dur­ing the con­sid­er­a­tion of the ap­pli­ca­tion this can avoid the need for the coun­cil to im­pose con­di­tions to re­quest those de­tails on the per­mis­sion.

An­other tech­nique is to ask to see the draft per­mis­sion no­tice be­fore it’s is­sued, and you can then re­quest that, where pos­si­ble, the con­di­tions re­quire ap­provals fol­low­ing com­mence­ment of de­vel­op­ment above slab level. This means you can progress with the foun­da­tion works, and the dis­charge of con­di­tions should not hold up the build.

If you buy a plot of land with plan­ning per­mis­sion that is al­ready sub­ject to con­di­tions, my ad­vice is to look at the con­di­tions very care­fully and de­cide whether you can live with them. It is pos­si­ble to make a plan­ning ap­pli­ca­tion to mod­ify or re­move the con­di­tions. Ob­vi­ously you must have a good rea­son and it has to be ac­cept­able in plan­ning terms. A typ­i­cal ex­am­ple would be an oc­cu­pa­tion re­stric­tion lim­it­ing the use of the house to agri­cul­tural work­ers. You can ap­ply to have this re­moved and it can be suc­cess­ful if you can prove that there is no de­mand for this ac­com­mo­da­tion in that area; this is a com­plex busi­ness (and a whole ar­ti­cle in its own right), but the point is that con­di­tions, like plan­ning per­mis­sions, can of­ten be mod­i­fied.

Also re­mem­ber that con­di­tions are sub­ject to en­force­ment time lim­its. This means that if you buy a house with an old plan­ning per­mis­sion and some­one has breached one of the con­di­tions con­tin­u­ously for more than 10 years, then it is likely to be im­mune from en­force­ment ac­tion. This is known as the ‘10 year rule’. It’s an­other ex­am­ple of the flex­i­bil­ity in the sys­tem when you know how it works.

In a nut­shell, deal­ing with plan­ning con­di­tions is more bureau­cracy and it could de­lay your build pro­gramme, but if you know this in ad­vance, you can take it all into ac­count. Get­ting your plan­ning per­mis­sion is not the end of the story; there will al­most cer­tainly be fur­ther mat­ters to be agreed by the lo­cal au­thor­ity or lim­i­ta­tions put in place that are im­posed through plan­ning con­di­tions. It’s im­por­tant you com­ply with these be­fore com­menc­ing and that you go into this process with your eyes open.

“Get­ting your plan­ning per­mis­sion is not the end of the story — there will al­most cer­tainly be fur­ther mat­ters to be agreed by the coun­cil or lim­i­ta­tions put in place that are im­posed through plan­ning con­di­tions”

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