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
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”