The decision-making process
Conditions and obligations
As an alternative to outright refusal, the Local Authority may grant permission subject to conditions.
These will commonly be in relation to:
- Details that need to be confirmed before the permission can be implemented, known as 'pre-commencement conditions'. For example, approval of the materials to be used
- Restrictions on the work needed to implement the permission. For example, the hours in which vehicles can access the construction site
- Restrictions on the use or operation of the development once complete. For example, any subsequent change-of-use.
The authority has to give reasons for the conditions when a decision is issued.
Additionally, from October 2018, the authority will usually have to seek the applicant's consent before approving applications subject to 'pre-commencement conditions'. This is to help ensure that such conditions are discussed between the parties and that mutually beneficial outcomes can be achieved.
If you are not prepared to accept the conditions you should discuss your objections with the authority, who may be able to suggest ways of resolving them. Alternatively, once the decision has been issued, you can appeal against the condition(s) that you do not agree with or make a subsequent application to have them varied or removed.
Planning obligations and agreements
Planning obligations, also known as Section 106 agreements (based on that section of The 1990 Town & Country Planning Act) are private agreements made between local authorities and developers and can be attached to a planning permission to make acceptable development which would otherwise be unacceptable in planning terms. The land itself, rather than the person or organisation that develops the land, is bound by a Section 106 Agreement, something any future owners will need to take into account.
The Government's guidance on the use of planning obligations is set out on Gov.uk1. Local planning authorities must take this guidance into account in their decisions on planning applications and must have good reasons for departing from it.
Planning Obligations are used for three purposes:
- Prescribe the nature of development (for example, requiring a given portion of housing is affordable)
- Compensate for loss or damage created by a development (for example, loss of open space)
- Mitigate a development’s impact (for example, through increased public transport provision).
Planning obligations must be directly relevant to the proposed development.
In April 2010 a number of measures within the Community Infrastructure Levy Regulations came into force. These reforms restricted the use of planning obligations and clarified the relationship between planning obligations and the Community Infrastructure Levy. The levy is a local charge that local authorities in England and Wales can choose to charge on new developments in their area to fund infrastructure. There are three key reforms that scale back the use of planning obligations:
- Planning obligations must meet three new statutory tests from 6 April 2010
- Planning obligations cannot be used to double charge developers for infrastructure. Once an authority has introduced the levy in its local area, it must not use obligations to fund infrastructure they intend to fund via the levy
- Planning obligations will no longer be the basis for a tariff. Once an authority introduces the levy in their area it can no longer pool more than five contributions for infrastructure capable of being funded by the levy.
However, planning obligations will continue to play an important role in making individual developments acceptable. Affordable housing will continue to be delivered through planning obligations rather than the levy. Local authorities can also continue to pool contributions for measures that cannot be funded through the levy.