Use of Conditions in Planning Permission - Circular 11/95 - Public forum - Planning Advisory Service (PAS)

Circular 11/95 is still valid, I would be interested to know what part of Circular 11/95 this condition contradicts?

Dear Alex,

Thanks for your advice. As a non-planning professional I was very wary that an 18 year old document would still have any validity, especially as planning law & procedure seems to be shifting sand at the moment.

The background; I have two semi detached three storey Victorian houses, which I (and others) consider to be ‘landmark’ properties and worthwhile preserving. However one has had no maintenance for for over 60 years and is in danger of becoming unsafe (I would give it a decade, if no serious action is taken). The staircase is on the flank wall which is bowing as it has large window openings; is no longer satisfactorily tied to the main structure; has shallow foundations above and is on subsidence prone London clay. The front of the house is pulling away from the other. There is a large high narrow chimney stack with 14 pots between the two houses that is leaning. That house needs underpinning, much of the front and flank taken down & rebuilt and 3,000+ bricks taken down from the chimney and relaid. Both houses will be completely updated internally and the frontage restored to a ‘conservation standard’.

As part of of the updating, I applied for extensions at the rear of both houses, as these are rather ‘top heavy’ for modern life-styles. They are identical mirror image extensions as I want to maintain the symmetry at the rear as well as the front, so that this building remains one cohesive entity and avoid ad hoc, piece meal developments so prevalent on the backs of so many of our streets.

The planning application ‘red lined’ the two plots as one application.

The Planning Officer recommended approval to the Committee. In addition to the uncontentious standard conditions the Officer recommended the following condition:

The development at Nos. ........... Road shown on the drawings hereby

approved shall be built and completed at the same time and shall not commence or be

completed independently of each other.

Reason: In order to ensure that the development complies with the terms of the

application, to ensure that that the amenities of neither neighbour are not adversely

impacted upon if completed separately and to ensure compliance with Policies ....(see Note (a))... and ..see Note (b)).. of this Councils Borough Wide Primary Policies Development Plan Document.

Note (a): long catch all paragraph but the concern is clearly “ Not prejudice the amenity of neighbouring occupiers by unreasonably restricting sunlight, daylight or privacy to their properties”.

Note (b): again a catch all paragraph but the concern is clearly “They do not dominate the existing building in terms of size, scale of height”.

These are perfectly reasonable concerns, as to build one extension without the other would in this case create a single storey 7 metre plus flank wall within inches of French windows of the other house and be grossly out of proportion in scale.

I made representations to the Officer to have the condition changed so that I might be allowed, if necessary, the latitude to complete one extension up to 12 months after the other. This is purely a financing consideration. I have some experience, as I have in the past built two self build houses. Even with new build, keeping a cash flow towards the end of a project can be difficult. However with this project it could be doubly difficult, as renovation costs can be notoriously difficult to quantify until the fabric of the building is opened up, and these extensions are a very small part of a much larger renovation project and will not be completed until the end. There is always the prospect that I will have to refinance the project during its progression, if costs are beyond my means, relying on the added value created.

I came across Circular 11/95 while preparing my 2 minute offering to the Committee and wanted to use that in support of my case, particularly paragraphs 36 &61, viz.

1. Even where a condition would not be so unreasonably restrictive as to be ultra vires, it may still be so onerous that as a matter of policy it should be avoided. Any condition which would put a severe limitation on the freedom of owners to dispose of their property, or which would obviously make it difficult to finance the erection of the permitted building by borrowing on mortgage, should be avoided on these grounds. An unduly restrictive condition can never be made acceptable by offering the prospect of informal relaxation of its effect (see paragraph 32 above). 

1. A condition requiring that the whole of the development permitted be completed is likely to be difficult to enforce. If a development forming a single indivisible whole, such as a single dwellinghouse, is left half-finished it may be possible to secure completion by means of a completion notice under section 94 of the Act. If, however, the reason for failure to complete, is financial difficulties experienced by the developer, neither a completion notice nor the enforcement of conditions would be likely to succeed; in such circumstances it may be that the only practical step open to the local planning authority, if they wish to secure the completion of the development, is the acquisition of the land. If a large development such as an estate of houses is left half-complete, this may well be because of market changes (for example, a shift of demand from four-bedroom to two-bedroom houses), and it would clearly not be desirable to compel the erection of houses of a type for which there was no demand or need. Conditions requiring the completion of the whole of a development should therefore not normally be imposed. 

Anyway, the Committee sat last night and permission granted, but with this amended condition:

“The development at Nos. ........... Road shown on the drawings hereby approved shall be built and completed at the same time and shall not commence or be completed independently of each other (for the avoidance of doubt ‘same time” is considered to be within a 12 month period).”

I am grateful to the Planning Department and the Committee for this movement, as it was clear that they are clearly supporting me in what I wish to achieve. However I still feel uncomfortable about this condition if it comes to a need to refinance. I cannot see that the individual properties are unencumbered sufficiently to allow a bank to lend if I need to mortgage (or even sell) one to finance the completion of the other. I could end up in a catch 22 situation.

I really don’t think my Planning Department, who proposed it to the Committee, have thought this condition through properly. I have not yet researched fully how the Planning Department could enforce such a condition but from reading paragraph 61 of 11/95 it would seem to be a futile, especially if the failure to complete were caused by lack of finance caused by the condition itself.

I must now consider my position. Whilst I am only scratching the surface at the moment it seems to me that I have two options:

1. make application, within 12 weeks, to the Planning Department under section 73 TCP Act for removal or amendment of the condition; or
2. lodge a formal appeal again within 12 weeks, under section 78 TCP Act. This would seem to be the least favorable, as it is not just the condition that is reviewed but the whole scheme, which could, it seems, be overturned. In any case, it seems to me, that I would still have an opportunity to appeal in the event of a failure of an application an application under section 73, but am uncertain when the time limit start date begins.

It also seems to me that Circular 11/95 has been amended by Paragraph 206 of the National Planning Policy Framework. This simply states, “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.” Regrettably it does not help to define how such phrases as “necessary”, “reasonable” etcetera should be interpreted. 

It does seem I have reasonable grounds for the condition to be overturned but can fully understand that the Planning Department want a condition to prevent only one extension being completed, as the adjoining house would be compromised; there would be a serious detrimental impact on the one without the extension.

I would like to be in a position to suggest a new wording that could not impact on my ability to refinance the project during the works yet satisify the Planning Department. Although frankly, it doesn’t seem to me that there can be any wording that will be of any use to them as they won’t have any realistic enforcement avenues open considering paragraph 61 of Circular 11/95.

I would be grateful if anyone has any comments, especially a reworded condition that would be more appropriate.

Finally I must misquote Blaise Pascal - I’m sorry for the length of this post, but I didn’t have time to write a short one.

Thanks for your detailed response, It has definitely given me an insight into the complexities of modern day planning!

It seems to me the best avenue for you to proceed with would be to apply for a variation of condition. I don't think i'll be able to think of another wording for the condition though. You may have the opportunity to appeal a decision on the application for a variation of condition though? But not 100% sure.

Thanks.