Visibility Planning Condition

Planning Advisory Service (PAS)

Open group | Started - July 2012 | Last activity - This week

Former Member, modified 10 Years ago.

Visibility Planning Condition

Question from Highway Authority- I believe we can condition visibility splays over third party land via a Grampian condition, the onus is then on the applicant to reach a civil agreement with the third party to provide and maintain that splay, the test is that “if there are at least reasonable prospects” (see circular) of the works being carried out, those works can be negatively conditioned. I believe the splay could be maintained as the applicant and the third party could enter into a sc106 agreement which would run with the third party land and then be binding on any future owner (third party). However, if “there are no prospects at all” (see circular) of the splay being provided over third party land, for example there is a building in the splay line or the third party makes representations during the planning process stating that they would not allow the splay to be taken over their land, we would not recommend the condition. I would welcome the view of LPA's to see if we as a Highway Authority are applying the guidance correctly.

Former Member, modified 10 Years ago.

Re: Visibility Planning Condition

Please see advice from the ODPM Circular 25/11/02, update to 11/95, use of Negative conditions- "The advice in Circular 11/95 on conditions depending on other's actions (Annex paragraphs 38 and 39), says that it is unreasonable to impose a condition worded in a positive form which developers would be unable to comply with themselves, or which they could comply with only with the consent or authorisation of a third party. Similarly, conditions which require the applicant to obtain an authorisation from another body should not be imposed. Although it would be ultra vires to require works which the developer has no powers to carry out, or which would need the consent or authorisation of a third party, it may be possible to achieve a similar result by a condition worded in a negative form, prohibiting development until a specified action has been taken. The way the advice is currently worded in paragraph 40 is that such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed within the time-limit imposed by the permission. As a result of the Judgement in Merritt, paragraph 40 should be amended to read, "It is the policy of the Secretary of State that such a condition may be imposed on a planning permission. However, when there are no prospects at all of the action in question being performed within the time-limit imposed by the permission, negative conditions should not be imposed. In other words, when the interested third party has said that they have no intention of carrying out the action or allowing it to be carried out, conditions prohibiting development until this specified action has been taken by the third party should not be imposed."