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WHAT ARE PLANNING CONDITIONS?
If you’ve received planning permission, it will be subject to one or more planning conditions. The planning condition(s) will appear on the formal decision notice issued by your local council.
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WHAT DO PLANNING CONDITIONS LOOK LIKE AND WHAT IS THEIR PURPOSE?
The most common planning condition – attached to all approved planning applications – is that development must begin within a set period of the decision notice. This period is normally 3 years.
This means if you fail to begin your development within 3 years of the date on the decision notice, the consent will expire. In these circumstances, you would need to apply for planning permission again.
There is a whole range of other planning conditions, addressing a wide variety of planning issues.
Broadly speaking, planning conditions will serve one or more of the following purposes:
- To clarify exactly what the permission is for and/or what its limitations are. For example, conditions are normally imposed requiring the development to be carried out in accordance with the approved plans. Conditions might also restrict opening hours, state how long a temporary consent can last, or provide maximum occupancy levels.
- To require the approval of (minor) site details before development can start. For example, conditions are often imposed requiring details of bin/recycle stores, new tree planting etc. to be agreed with the council ahead of construction. Conditions that must be dealt with before development can start are known as “pre-commencement” conditions. Pre-commencement conditions should normally be agreed with the applicant before they are imposed.
- To prevent future changes to the site that would be inappropriate or harmful. For example, where permission is granted for new housing in sensitive or historic areas, conditions might be imposed to restrict certain householder permitted development rights such as the construction of new fences, hardstandings or extensions etc. This means you would always need to apply for planning permission before making any of these changes to the site. Find out more about householder permitted development rights using the button below.
- To provide control over potential, unknown harms of the development. For example, conditions are sometimes imposed “in the event” that unforeseen land contamination, archeological deposits or protected species’ habitats are found on the site during construction. Normally, the condition would require you to cease construction works while appropriate site investigations are carried out.
WHAT DO I NEED TO DO ABOUT PLANNING CONDITIONS?
Some planning conditions require action to be taken, but not all. Conditions should always be clearly worded so it is obvious what action is required, if any.
All pre-commencement conditions will need to be dealt with before any development – even clearance or excavation works – can begin. This is known as “discharging” planning conditions. If you fail to do this, you could invalidate your planning consent.
Pre-commencement conditions will normally look something like this:
“No development shall commence until details of […] have been submitted to and approved in writing by the Local Planning Authority.”
Other conditions may require you not to do something. For example, the following condition is frequently imposed on permissions for rural workers’ dwellings:
“The occupation of the dwelling shall be limited to a person working for a local agricultural business and their dependents.”
HOW ARE PLANNING CONDITIONS DEALT WITH?
There are two main types of planning application for dealing with planning conditions. These are:
1. Discharge of conditions
This just means approval of conditions. This type of application applies to conditions that specifically require the written approval of the council concerning any matter. For example, a condition requiring full details of all external construction materials to be submitted and approved in writing.
In most cases, you cannot commence development until the LPA’s written approval is received.
2. Removal or variation of conditions
If you think a planning condition is unnecessary or unreasonable for any reason, you can apply to your council for it to be varied or completely removed. For example, you may consider a restriction on opening hours to be excessive or unfair, especially if neighbouring premises are entitled to remain open for longer.
There is also a right to appeal against conditions imposed by a local council on a grant of planning permission. Any appeal against a conditional grant of permission must be submitted within 6 months of the decision notice. Find out more about appeals using the button below.
WHAT IF MY APPLICATION TO DISCHARGE, VARY OR REMOVE A PLANNING CONDITION IS REFUSED?
If your application to discharge, vary or remove a planning condition is refused, you have two options:
- Submit a revised application to the LPA
- Appeal the LPA’s decision within 6 months.
The preferred option in any one case will depend on a number of factors, including how much scope there is to amend the application and whether there is a significant time pressure to commence development.
If you’re not sure whether to pursue an appeal or a revised application, get in touch for some advice as soon as possible.
WHAT IF I FAIL TO COMPLY WITH A PLANNING CONDITION?
It is very important that you comply with all planning conditions. Some planning conditions – such as the occupancy restrictions on rural workers’ dwellings – are written to have permanent effect. This means that all future occupants of the site must also comply with it.
If you’ve recently purchased a new property, it’s a good idea to investigate its past planning consents and any attached planning conditions that might still affect your use of the property.
If you think a condition is unreasonable or unnecessary, you should make an application to vary/remove it or otherwise appeal the LPA’s decision (more on this above). You should never just ignore it.
The main consequences of failure to comply with a planning condition are normally:
- If you fail to comply with a pre-commencement planning condition, your development may automatically become unlawful. This means it will be as though no planning permission were ever granted and your local council could take enforcement action against you.
- If you fail to comply with any other planning condition – for example, a condition on opening hours or building materials – your council is entitled to issue a “breach of condition” notice. This will require you to comply with the condition within a given period of time (no less than 28 days). There is no right of appeal against a breach of condition notice and failure to comply with its terms could result in criminal prosecution. Breach of condition notices can be used as an alternative or in addition to enforcement notices, against which you do have a right of appeal. Find out more about enforcement using the button below.
DOES A BREACH OF CONDITION EVER BECOME IMMUNE FROM ENFORCEMENT ACTION?
Breaches of planning conditions generally become immune from enforcement action when they have occurred continuously for 10 years without the LPA having taken enforcement action.
The only exception to this is where the breach is in respect of a planning condition preventing the use of the site or property as a single dwellinghouse. In these circumstances, the breach need only have occurred continuously for 4 years to become immune.
You can find out more about the 4 & 10 year rules using the button below.
The end of the 4-year rule
Please note: the 4 year rule is on its way out! The Levelling Up and Regeneration Act 2023 will see the 4 year rule replaced with the 10 year rule. As of November 2023, we’re still waiting for confirmation of when this will happen and what the transitional arrangements will be. If you have a 4-year rule case, we advise you to contact us immediately for advice.
If you believe that your breach of a planning condition is now immune from enforcement action, we would advise you to apply for a lawful development certificate. A certificate will formally confirm that the breach of condition has become lawful and your local council cannot take enforcement action against it.
In order for a lawful development certificate to be issued, you will need to provide sufficient evidence that the breach has occurred continuously for at least 4 or 10 years, as relevant. Generally speaking, you will need at least one piece of evidence for each of the 4 or 10 years.
Find out more about lawful development certificates using the button below.
Planning Direct can advise whether you have enough evidence to apply for a lawful development certificate and assist you to identify the correct evidence. We can also assist you in dealing with all sorts of planning conditions.