Monthly Archives: January 2017

Planning inspector had sufficient regard to viability of Grampian Condition

Paragraphs 203 and 206 of the National Planning Policy Framework say:

“203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition…..

206. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”

Planning Practice Guidance provides:

“When can conditions be used relating to land not in control of the applicant?

Conditions requiring works on land that is not controlled by the applicant, or that requires the consent or authorisation of another person or body often fail the tests of reasonableness and enforceability. It may be possible to achieve a similar result using a condition worded in a negative form (a Grampian condition) – i.e. prohibiting development authorised by the planning permission or other aspects linked to the planning permission (e.g. occupation of premises) until a specified action has been taken (such as the provision of supporting infrastructure). Such conditions should not be used where there are no prospects at all of the action in question being performed within the time-limit imposed by the permission.

Where the land or specified action in question is within the control of the local authority determining the application (for example, as highway authority where supporting infrastructure is required) the authority should be able to present clear evidence that this test will be met before the condition is imposed.”

In Bellway Homes Ltd v Secretary of State for Communities And Local Government & Anor [2015] the developer was proposing a housing development on Waggs Road in Congleton. The road and it’s footpath were narrow and speed bumps were considered necessary if it was to be able to support the development safely.

The Planning Inspector found:

“a) There has been no public consultation on the road hump proposals and the detailed design of the humps remains unspecified.

b) The Council has no adopted policy on speed humps but “advises that similar proposals have been rejected as a result of objections from residents”. The Inspector accepts that she cannot second guess the outcome of any consultation on “a detailed version of the submitted scheme or indeed any alternative scheme”. In those circumstances the Inspector notes that she: “cannot be confident that a scheme of speed reduction provided by way of a Grampian Condition could or would, in this case take account also of potential effects on road users and local residents”. The conclusion then is, given the uncertainties identified by the Inspector, that “neither the submitted proposals nor a Grampian Condition can reasonably be relied on to overcome the adverse effects the proposed development would have on the safety of pedestrians and drivers in Waggs Road.”

Upholding the Planning Inspector’s decision to reject the Developer’s appeal against the refusal of planning consent, the High Court was:

“satisfied that the Inspector’s references to the absence of probability that the works would be completed does not establish that she made any error in approaching her decision. Whilst the Inspector did not make specific reference to it, it seems to me that she almost certainly had in mind the need for all planning conditions to be enforceable, precise and reasonable in coming to her conclusion. ”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning permission failed to properly address impact on Green Belt openness

The National Planning Policy Framework (“NPPF”) says:

“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this … [include]:

provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
… ”
In Boot, R (On the Application Of) v Elmbridge Borough Council [2017] the Defendant’s development plan policy DM17 – Green Belt (Development and New Buildings) said:

“b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building’s function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme.”

The planning officer’s report found that the new £17.9m sports ground use proposed, and the buildings and structures required to support it, including the pavilion, floodlights, fencing and car park, would have an impact on the openness of the Green Belt but considered that it would not be significant.

The Defendant’s planning committee accepted in its Statement of Reasons that:

“There will be a limited adverse impact on landscape and visual amenity and ‘openness’ of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damaged land which is supported by para 81 of the NPPF.”

Quashing the planning permission the High Court agreed with the Applicant’s barrister that:

“if a proposal has an adverse impact on openness, the “inevitable conclusion” … is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.