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Planning Conditions - The Silent Killers

on Friday, 06 December 2019.

Whilst planning conditions can add flexibility to an application by delaying certain decisions and approvals, and despite their increased use, it is often forgotten that they may continue to bind the landowner forever.

We are often asked to review planning conditions contained in existing and proposed planning permissions for higher education institutions. Such conditions affecting an institution's estate may cover a whole range of matters regarding the built environment. They may also place restrictions on the business. For example, a condition may limit the number of students who can use a particular building or even a whole campus, or a condition may impose limits on the methods of travel to the relevant site and hours of use. These may continue to bite long after the construction work has finished.

What Is a Planning Condition?

Planning conditions are imposed to enhance or to make the development acceptable in planning terms by mitigating any adverse effect it may have on the development site and the surrounding area. The reasons for imposing the planning conditions might include reducing the impact on surrounding roads and streets (eg parking and general traffic), environmental mitigation, and perhaps sometimes amenity of existing local residents.

When Should You Consider Planning Conditions?

Whenever a development is proposed or the scale or type of your education and other work changes, planning conditions should be considered. We can help with the review of draft planning conditions and report on existing conditions affecting your estate. We can advise on legal acceptability and also review the practical impacts with you. We will understand whether the conditions are the best way of meeting not only the planning objectives, but your requirements too.

Where the conditions are already imposed on an existing planning permission, we can advise on their continued applicability, the possibility of variation and where such conditions have been breached, the risks of enforcement.

Modifying Planning Conditions

Existing conditions may be modified upon application to the local planning authority. You would commonly have to show that the condition is no longer required or that the development mitigates the adverse impact for which the condition was originally imposed in some other way. This may require expert planning evidence depending on the type of issue.

Enforcement of Conditions

When it comes to enforcement, the risks are varied and you need to understand what the possible options are and the best way forward.

There are circumstances where a condition has been subject to technical breach and no harm has been caused. An option then may be to do nothing. The condition may have been breached for ten or more years, in which case it is possible that the breach becomes immune from enforcement action. The extent to which the immunity applies, and for how long, is subject to the particular circumstances and requires careful advice.

Whilst conditions are easily forgotten (they reside only in the document issuing the grant of planning permission itself) or overlooked, they are subject to fairly stringent enforcement powers by the local planning authority. Upon discovering a breach of a planning condition, the local planning authority may serve a breach of condition notice requiring compliance within a reasonable period which may be relatively short.

We often see that such periods of compliance do not align with academic years. Therefore, if the breach is incapable of being remedied until the end of the academic year, we would negotiate with the local planning authority to work up a plan of action for the intervening period, or make an application for amendment to the condition. Theoretically, the local planning authority could insist upon compliance with the condition which might necessitate immediate remedy, eg a reduction in student numbers part way through the year or alternative travel procedures/parking bans.


If you require any advice regarding existing planning conditions or in relation to a proposed development, please contact David Bird in our Planning Law & Infrastructure team on 0117 314 5382, or complete the form below.

 

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