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Green Belt appeal success: meeting the ‘6 tests’ for conditions

The existing site has an extensive planning history; however it currently operates as a local community focused mixed use site comprising a nursery, farm shop and café with a number of temporary permissions in place to support these three uses. Temporary uses include the community events use, the garden shop retail use, an exhibition space, and exotic animal housing use. When the temporary events and garden shop uses were due to expire, further temporary permissions were sought in early 2021, given they are integral components of the business.

Whilst officers offered their support for the renewal of the temporary events use and garden shop permissions, in their recommended approach to the planning committee in August 2021, each permission was subject to altered and additional conditions, which went above and beyond the level of control previously in place as we had pointed out The altered and additional conditions fundamentally undermined the operation of the extant uses, resulting in an unreasonable level of control and in the case of the garden shop, made the permission impossible to implement.

Boyer successfully demonstrated in both appeals that the conditions did not meet the ‘6 tests’ outlined in the NPPF and PPG, therefore, should have never been applied. The Inspector agreed, citing that the altered events use condition was neither enforceable, reasonable, precise or necessary and the additional condition attached to the garden shop was neither necessary nor reasonable. The appeals were upheld, granting permission for the events use with the condition reverting back to the original and the offending new condition for the garden shop, deleted entirely.

Our client was also awarded full costs, after the Council conceded in submissions that the conditions did not meet the necessary tests. It was also submitted, that the planning committee had not been given the conditions proper consideration during the debate. The errors in drafting and fundamental issues of necessity and reasonableness were highlighted to officers beforehand, but not considered my members. Ultimately, the Inspector agreed, finding that it was clear that had proper consideration of the proposed conditions been given, the appeals could have been avoided.

These appeals are a sharp reminder of how important it is, to properly consider conditions against the ‘6 tests’ before a decision is issued, ensuring they are truly necessary, reasonable, and relevant to the development and planning itself. They also demonstrate that careful and considered drafting is necessary, to ensure they are precise and enforceable. Unfortunately, far too often, conditions are applied to decision notices, without proper consideration of the impact or constraint on the development that can occur.

As advised in the PPG, as good practice and notwithstanding the ‘6 tests’, conditions should always be kept to a minimum and only applied to mitigate adverse effects, where it would otherwise have been necessary to refuse planning permission. Given conditions are often an ‘afterthought’ at planning committees, members should carefully scrutinise their application as part of the decision-making process, as much as the decision itself. Not only when approving development subject to conditions but also when refusing development, to consider whether appropriate conditions could overcome any perceived planning harm. Either way, they are a powerful planning tool and as this case demonstrates, getting them wrong, can be very costly.

To read the decisions in full, please see the following link: https://acp.planninginspectorate.gov.uk/ViewCase.aspx?caseid=3287734

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