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Conditions

Certainty of conditions

R (On The Application of Orchard (Development) Holdings Plc v First Secretary Of State)
[2005] EWHC 1665 (Admin)

The Claimant challenged the refusal of an appeal by an inspector on the grounds that a Grampian condition proposed by the Claimant for a grant of planning permission for a residential development was too imprecise. The main issue before the inspector was in relation to the provision of a replacement football ground. The Claimant had proposed a condition preventing the commencement of any development until it had provided an alternative football ground that had equivalent or better recreational and community facilities to those available at the existing football stadium.

The Court held that the decision of the planning inspector had been an exercise of planning judgement which it was inappropriate to quash. The Inspector did not have available in the proposed condition sufficient criteria to enable him to compare the proposed football ground with that offered by the existing football ground.


Condition as modification

Redrow Homes Limited v First Secretary of State and another
[2003] EWHC 3094 (Admin)

Facts

Redrow owned part of a larger site that had the benefit of a 1957 outline planning permission for commercial development. The original permission allowed for three access roads linking with public highways, subject to a condition that no access road should be constructed until its precise location had been agreed with the local planning authority.

In 2000 Redrow applied for approval from the local planning authority for a specific access road location. The application was not determined within the two-month time limit and Redrow appealed to the Secretary of State. He granted approval subject to a condition that the access road use of the access road should be restricted to public service vehicles only. Redrow challenged this decision in the High Court under section 278 of the Town and Country Planning Act 1990 on the ground that the imposition of the condition amounted to a revocation or modification of an extant planning permission.

Decision

Sullivan J allowed the appeal by Redrow, holding that unless the original planning permission had contained words of limitation, it must be assumed that access was intended to the site by the same traffic that used the public highways. The Secretary of State had accordingly acted unlawfully. If he wished to modify the planning permission he had to do so by way of section 100 of the 1990 Act, so allowing Redrow a claim for compensation under section 107.

Comment

It was decided in R v Newbury District Council, ex parte Stevens and Partridge [1992] 3 PLR 94 that there is power to grant approval of reserved matters conditionally, but that such power must not be exercised in a way that derogates materially from the original grant of outline planning permission.


Interpretation - new retail development


Northampton Borough Council v Secretary of State for the Home Department and Land Securities Properties Limited
[2005] EWHC 168 (Admin)

The judge held in this case that where a planning permission condition sought to impose an upper limit on non food retail floor space, then the use for retail purposes of additional floor space created by the installation of a mezzanine floor would reasonably be described as "new development" within the Town and Country Planning Act 1990 s.55:
    "Mr Katkowski submitted that the use of the mezzanine for non-food retail purposes would not be "new retail development" as mentioned in the reason for the imposition of the condition as varied, because section 55(2)(a) expressly excludes such internal works from the definition of development.

    26. In my judgment, this is an example of interpreting a condition and the reasons given for the imposition of a condition in a legalistic rather than in a common sense way. It is perfectly true that a lawyer would not describe the carrying out of internal alterations,whether by the installation of a mezzanine or otherwise, as "new development", because of the provisions of section 55(2)(a). However, the use for retail purposes of the additional floor space thereby created would reasonably be described as "new retail development" in the context of a condition that was seeking to impose an upper limit upon non-food retail floor space."


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