In the euphoria of gaining planning approval, don’t overlook or dismiss the conditions attached. You ignore them at your peril, says Lewis North.
Planning conditions really are the small print of the building world. All planning permissions are granted with conditions attached and it’s easy in the euphoria of the big headline to ignore the detail. When you’re buying a building plot with planning permission already in place, it is vital to read and understand those conditions — and to make sure that they are capable of being satisfied or discharged by you, within your remit.
Failure to do so is bad news — if you don’t address all of the planning conditions it can invalidate the consent and, therefore, any work that may have been carried out relevant to that consent. Planning conditions cover a whole range of works and come in different shapes and sizes.
All planning permissions are granted with conditions attached, outlined (usually) on the same document. They must be discharged (satisfied) formally by letter by the local authority, usually before commencing work — otherwise the approval is invalidated.
Conditions usually focus on prior approval of external materials, landscaping and boundary schemes and other aspects of a project too detailed to be included in the planning application.
The most important condition is the time condition, detailing by which date a project must have started.
Not all local authorities have a formalised pre-application process and it is, therefore, incumbent upon the self builder to find out what requirements the local authority have in order for any application to be validated.
Many local authorities will not accept an application unless it is accompanied by a flood risk assessment, a wildlife survey (such as a bat survey) and/or an archaeological survey. Others may require a car parking survey.
All of these cost money and it is money which, in the event of the application failing, is not recoverable.
The Hidden Cost of Conditions
A local authority can charge £97 for each letter of application to discharge conditions. So if there were 15 conditions and you applied separately for each one to be discharged, the fee would be £1,455.
It makes sense, therefore, to gather all of your material and make just one application to discharge all of the conditions at the same time. Unfortunately, that may mean that you are having to eat into the available time in the run-up to the consent’s expiry while you wait for the necessary information and/or plans to be drawn up.
Common Conditions for Planning Permission
The most important condition on any consent relates to the length of time that it will remain valid. Over the years, successive governments have endeavoured to shorten the duration of planning consents in the – often mistaken – belief that by doing so they will speed up the process between the granting of planning permission and the development of the land. In fact, the complexity of the planning process and the length of time taken, not only in consideration of the application but the clearance and discharge of conditions, has meant that there is an uncomfortable shortness of time between obtaining planning consent and being ready to commence work.
Most outline consents last for just three years, during which time approval of reserved matters (detailed planning consent) must be obtained. Work must then be commenced within two years of the detailed approval being granted.
Now this is important. If your application for approval of reserved matters runs beyond the three-year period and fails, then the original outline consent could find itself out of time. If it succeeds, of course then the consent will last for another two years during which time you must start work on site. All of this makes it even more important that anyone contemplating buying land or a property with a planning consent should study the conditions and, in particular, the dates in great detail.
Because an outline consent requires so much detail these days, many applications are for full planning permission which means that, as soon as the consent is granted and conditions are discharged, work may commence without a second or subsequent application (subject of course to a Building Regulations application being lodged). Most full planning permissions last for three years from the date of consent.
Notwithstanding what it said on the plans or in the correspondence that accompanied or resulted from the original planning application, most local authorities will impose a condition requiring the agreement in writing. This often follows the production of samples, for any or all of the external materials.
The self builder or renovator ignores this condition at their peril. If you proceed with the building without clearing this condition, you may find that your failure invalidates the consent and that any work you have carried out, even if approved by the local authority building control department, is invalid.
Your local council can no longer hold you up. From 15 April 2015 an applicant will be able to serve the council with a “deemed discharge notice” six weeks after applying for confirmation that a condition has been discharged. The notice will specify a date, at least two weeks later, on which the relevant condition will be considered to be discharged unless notice is received of the council’s decision.
Code for Sustainable Homes
Many local planning authorities enthusiastically adopted the Code for Sustainable Homes and made compliance with it a condition of any new build planning consent.
The responsibility for the building practices and standards brought about by the Code will now be subsumed within Building Regulations. But there are many legacy planning approvals out there which require the appointment of a Code Assessor. Applicants will have to ask the local authority to confirm whether compliance with Building Regulations will be deemed to satisfy this condition.
Parking and Driveways
There is often a condition relating to the provision and the surfacing of any parking or driveways. The layout will be noted on the plans but the choice of material for the surfaces will have to be agreed.
If there are trees in the vicinity it may be necessary to prove that any surfacing work will not disturb the roots and that water can still percolate down to them. It may also be necessary to demonstrate that any surface water will not be running into the carriageway.
Full details of any fencing or walling will have to be provided prior to commencement of works being carried out — this may include the treatment or augmentation of any hedges.
Trees and Tree Planting
Many consents will have a condition requiring the protection of certain trees and this is easy to demonstrate and comply with. Others will require a tree planting and landscaping scheme to be approved prior to commencement of work.
This will entail designing your garden before there is even a home on the plot. But, while that may seem to some like putting the cart before the horse, it is nevertheless necessary to comply with this condition, which may go on to require details as to future maintenance of any planting regime.
The good news for self builders is that putting a detailed landscaping scheme on the planning application means that you can reclaim the VAT on most of the materials (e.g. trees, turf and plants) as part of your overall reclaim.
All planning applications have to detail the method of disposal of both surface and foul drainage and this should be reflected in the plans. Nevertheless, most local authorities will require subsequent detailed drawings and proposals showing the precise arrangements to be employed, prior to commencement of any work starting on site. This means that, technically, one cannot get on with services and the like while waiting for clearance of conditions.
Permitted Development Rights
An important consideration in any planning consent is whether or not Permitted Development rights (the work you can carry out to a property, such as small extensions, without needing planning consent) have been extinguished or curtailed as a condition of the consent. They often are, particularly on approvals given on sensitive or controversial sites.
Any limitation may mean that any extensions in the future or, in extreme cases, the erection of something as innocuous as a garden shed may need express planning permission.
Appealing Against a Condition
An appeal can be made against a condition or conditions contained within a planning permission on the grounds that they are unfair, unreasonable or unlawful. But beware, the inspector can revisit the original application, change other conditions or impose fresh conditions. They can even reverse the original approval; although if they intend to do any of these things, they must give notice of their intention, giving the appellant(s) the opportunity to withdraw the appeal.