Are planning authority’s power to impose conditions limited? What lessons are there from a planning authority’s decision in a recent case?

Conditions imposed on planning permission

Many people navigating the planning process (whether as a professional, applicant or interested party) will have come to that part of a committee meeting where Members speculate and take representations on what conditions might be imposed if the committee were minded to approve a scheme.

This can represent a redoubt for objectors who, sensing that the decision on the principle of development is going against them, will seek to have robust conditions imposed on any planning permission. A cynic could suggest that the motivation of certain objectors might even be to achieve a conditioned scheme that is effectively unimplementable (either on the basis of available land or resources); a pyric victory for the applicant/developer.

However, the power available to planning authorities to impose conditions is not unconstrained, notwithstanding what would seem to be the plain language of section 70 of the Town and Country Planning Act that the authority may grant planning permission “subject to such conditions as it thinks fit”.

The ‘tests’ to be applied

The Court in Newbury v SSE (1978) 1 WLR 124 set out the ‘tests’ to be applied to the decision to impose a given condition:

  • It must be for a planning purpose and not for any ulterior one;
  • It must be fairly and reasonably related to the development permitted; and
  • It must not be unreasonable.

In terms of the reasonableness question, whilst a condition may lawfully limit or enlarge a scheme or change its nature to some extent, but it must not result in a development which in substance is not that which was applied for (Bernard Wheatcroft Ltd v SSE (1982) 43 P&CR 233); it cannot fundamentally alter the proposal put forward in the original application (R v Coventry CC ex p Arrowcroft [2001] PLCR 7).

Planning authority decision in a recent case

In the recent case of R (on the application of Susan Suliman) v Bournemouth Christchurch and Poole Council & Anr [2022] EWHC 1196 (Admin) the requested condition was a requirement for the development to provide a 12m wide wildlife buffer strip. Although there were different scenarios put to Members, it was accepted that the outcome would have been the loss of a number of houses from the development.

However, because the application was for full planning permission (and so could not be tweaked or re-engineered to accommodate this) the planning authority took the view (on advice) that to impose a condition that would cut the housing delivery in this manner would be to fundamentally alter the scheme approved from that which was applied for.

Although the Authority’s decision to grant planning permission without the ‘buffer zone’ condition was judicially reviewed, that challenge failed. The Court accepted that the advice to Members was legally sound and that the scope of the power to impose conditions didn’t stretch as far as imposing the condition suggested.

Ironically, had the developer acquiesced and accepted a condition as suggested (on the basis that it would find a way to live with it or take the planning permission on offer and seek to change it later) the resulting planning permission would have been susceptible to legal challenge.

There are lessons for all parties flowing from this recent decision which, although it doesn’t create new law, is a useful reminder of the limits on a planning authority’s powers.

The limits on a planning authority’s powers to impose conditions

For a planning authority: to resist the temptation to impose a condition sought by an objector in an effort to steer a safe course between competing interests.

For a developer: not to accept a planning permission at any cost. A planning permission that is later subject to a successful challenge could put them in a worse position than for a refusal that could have been overturned on appeal.

For objectors not to over-reach in terms of what concessions can be gained through the imposition of conditions. Asking for too much might result in getting nothing at all.

Our Planning team at Stephens Scown can provide comprehensive advice relating to planning authorities and planning permission. If you have a question for one of our specialist advisors, please contact us on 01392 210700