Removal of a condition - Public forum - Planning Advisory Service (PAS)
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Started - July 2012
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Last activity - This week
Removal of a condition
Planning permission was granted for 2 live work units oustide of the village settlement and a condition was imposed restricting the offices to B1 only the reason was in the interest of residential amenity. The site was sold and the new owner applied to reduce the floor space of the offices to allow more residential area. The same condition was imposed but with a different reason which related to restrict the offices being used for residential use (more so as bedspace as a three bedroom dwelling is not supported in this area - CS). An application has been submitted requesting the removal of the condition on the grounds that the reason to impose it has changed and therefore the condition is unreasonible they also claim that it is not enforceable. In my view the nature of the application changed with the amendments reducing the buisness floor space to allow more residential space. Is there any substance in their challenge they can of cause appeal the condition but choice this route instead.
In the wider context, do you have any concern that the applicant might be able to side step your policies by using the DCLG statement on encouraging the conversion of commercial buildings into residential use if the applicant fancies doing so! Given the clear political pressure now being applied to PINS, NPPF already potentially a material consideration, you might already of lost any appeal you seek to fight.
It is not usually possible to give a conclusive answer without having seen the specific details of the condition and the relevant application, however first and foremost you need to decide if the reason for imposing the condition meets the relevant legal test and case law for imposing planning conditions? One question to ask is what does the condition actually achieve, given that change from office to residential is normally regarded as a material change of use anyway? Is this why the applicant believes it is unenforceable? It is usually rather less significant to dwell on whether the reason for imposing the condition has changed. The courts will also generally try to interpret a poorly worded condition by giving it a sensible planning meaning which everyone can understand, but this is dependent on the facts and is not going to be possible in all cases. Of course, one potential outcome of the s73 application is that a differently worded condition could be applied instead, provided it is justified.
I am positive that the test of the circular can be met and whilst it is advisable to enter a justified reason stating policies any breach of condition would not have regard to the reason anyway. The development would be refused without the 'work' element as its in designated open countryside and the 2 bedroom bungalow supports the councils stance on meeting local identified housing need and 3 bed would be refused (and we have successfully defended this approach at appeal) I think I have just answered my own query :)