In a planning condition attached to a planning permission, a “tailpiece” to that condition may on it’s face enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted.
It thereby purports to enable a development to be carried out in a way that bypasses any statutory planning process.
In R (Midcounties Co-operative Ltd) v. Wyre Forest DC  outline planning permission was granted for a new class A1 supermarket. The description of development in the planning permission did not specify the floor space permitted, but the application incorporated the specifications of floor space.
Condition 6 of the planning permission granted provided that the food store approved should not exceed the specified maximum “unless otherwise agreed in writing with the Local Planning Authority.” The High Court held that the tailpiece to condition 6 was unlawful as it undermined the effect of specifying floor space limits. Worse still the condition could not be severed from the planning permission. The floor space limits were of central importance.
In Hubert v Carmarthenshire County Council  condition 21 to the grant of planning permission was that the wind turbine approved should be 40 metres to the centre of the hub and 67 metres to blade tip, unless given the written approval of the local planning authority.
The High Court ruled that the Midcounties principle applied here, the tailpiece to the condition was bad. The officer’s report had recognised the importance of the turbine’s dimensions, but condition 21 as drafted allowed all the safeguards to be sidestepped.
Given the centrality of condition 21 to the subject matter of the permission and the significance of the turbine’s dimensions to it’s environmental effects. The words of the tailpiece would permit variations in height so that the scale and impact of the turbine would be different from that covered by the planning permission actually granted.
The breadth of the words used in the condition meant that it could not be interpreted as being restricted to minor variations.
The condition allowed variations, up or down, and without any restriction either way, from the dimensions the Council had assessed and specified.
Indeed, the permission itself admitted that the conditions imposed could permit something different from that applied for because it expressly said that the development being permitted was that defined in the application materials “unless amended by any attached condition”.
It would be quite wrong for the planning permission to be the subject of public debate and democratic decision-making in the Council, only then to be capable of being side-stepped by use of the tailpiece. The tailpiece was therefore unlawful and had to be severed from condition 21.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.