The insertion of new conditions in the Neighbourhood Planning Act could have significant consequences for the sector. DLA Piper’s Vanessa Ralph explains
The Neighbourhood Planning Act 2017 received Royal Assent on 27 April 2017. Not yet in force, section 14 of the 2017 Act inserts a new section 100ZA into the Town and Country Planning Act 1990 (1990 Act). While much has been written about the restriction on imposing pre-commencement conditions (contained in subsection (5)), there has been noticeably less commentary on the first half of the section. While the section may never come into force given the political climate, this article considers the background to, and the possible effect of, these provisions.
The first subsection provides that the Secretary of State may by regulations set out that certain conditions may not be imposed in any circumstances on a planning permission, that prescribed conditions may only be imposed on a relevant planning permission in specified circumstances, or no conditions may be imposed on a relevant planning permission in certain circumstances. In each case, conditions or circumstances will be set out in regulations, and the restrictions apply to planning permission granted to develop land in England under a planning application under the 1990 Act.
The second subsection limits the scope of the regulations to require that the restrictions on conditions imposed on a planning permission will be:
a) Necessary to make the development acceptable in planning terms;
b) Relevant to the development and planning considerations generally;
c) Sufficiently precise to make it capable of being complied with and enforced; and
d) Reasonable in all other respects.
If this sounds familiar, that is because it is largely a restatement of the six tests on imposing planning conditions currently set out in the National Planning Policy Framework (NPPF) and National Planning Practice Guidance (NPPG) on the use of planning conditions.
By way of background to these changes, DCLG’s consultation paper on improving the use of planning conditions was issued in September 2016. It indicated that these new provisions were to be introduced to address the government’s continuing concern that too many overly restrictive and unnecessary conditions are routinely attached to planning permissions, resulting in additional costs and delays to the delivery of, in particular, housing development. The provisions were intended to ensure that “conditions are only imposed where they meet the tests that are currently set out in the NPPF”, yet retain flexibility for authorities to ensure that impacts of development are adequately mitigated.
The government consulted on the proposed prohibition of six specific types of condition, comprising those that:
• unreasonably impact on the deliverability of a development;
• reserve outline application details;
• require the development to be carried out in its entirety;
• duplicate a need for compliance with other regulatory requirements;
• requiring land to be given up; and
• contain a positive obligation to pay money or other consideration.
Again, it should be noted that the NPPG already provides guidance that such conditions should not be imposed.
Only around 28% of consultation respondents were in favour of prohibiting the imposition of these conditions, with about half those making up developers. They welcomed legal clarity on the sorts of conditions that should not be imposed, with others agreeing it may reduce the number of unnecessary conditions imposed. Local planning authorities made up half of the approximately 72% against prohibition. This may have been due to uncertainty surrounding exactly which sorts of conditions would be prohibited: while the consultation listed only those conditions, it also asked for views on “whether there are other conditions…which are unnecessary or otherwise fail the six tests set out in the NPPF and which should be prohibited…”
In light of this, the government has pledged to provide greater clarity on the conditions it proposes to prohibit in the draft regulations, by carrying out a further consultation on their scope. This is a welcome step: there is considerable room for precluding a greater number and type of conditions than the government allowed for during the consultation. The proposals’ reception in the House of Commons was striking, with a suggestion made that a local planning authority may have a planning reason to impose a particular condition – only to find it cannot because of restrictions imposed by the Secretary of State. As such it appears the government’s intention in introducing the provisions was either widely ignored or misunderstood.
Nevertheless, the government has reiterated its intention to prohibit the six specific conditions consulted upon. It is unclear, in light of the lukewarm response to the consultation, whether this power will, in fact, avoid unnecessary conditions, or, in fact, speed up development. Again, the proposal to prohibit these particular conditions was closely scrutinised in the House of Commons. There were suggestions that Ministers had ignored more obvious ways to ensure conditions are properly applied, particularly given that the NPPG contains detailed advice on not only the content of conditions but also, in some cases, how to word them. It was noted that a direction could have been given by the Secretary of State to authorities requiring compliance with the NPPF (and NPPG), and pointed out that the Planning Advisory Service already contains useful guidance for local planning authorities.
In light of this background, it is unclear whether the prohibition will have any significant impact and whether in its keenness to force compliance through statute the government has legislated on this topic unnecessarily. All may become clearer when the draft regulations are consulted upon.
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Legal Director in the Real Estate Group
Tel: +44 (0)20 7153 7947