Memo
Dear Mark,
Advice - restriction of amalgamation and maintaining affordability of retail
units through planning conditions/obligations
I set out my thoughts below on the query set out above. Unfortunately there is very
little case law/guidance available on this specific issues so I have focussed on the
legality angle. I have also referred to my previous advice on the lawfulness of
restricting permitted development rights through condition with I attach again for
ease of reference (Attachment 1). Please let me know if you have any further
questions.
Queries
Proposed DMLP Policy DM8 seeks to limit the amalgamation of small/independent
shop units and promote the inclusion of small shops retail floorspace within
developments in Hackney. The former will likely involve the restriction of permitted
development rights. The Council is seeking to achieve these goals through the use
of planning conditions, and through planning obligations pursuant to section 106 of
the Town and Country Planning Act 1990 (the 1990 Act).
Is this proposed approach lawful and/or sound?
Answer
There is nothing to suggest that the imposition of the suggested condition and/or
planning obligation is unlawful per se. The condition will need to be drafted in line
with previous advice to ensure there is no legal queries over the removal of
permitted development rights.
In terms of soundness, we have the policy background from the London Plan
(hopefully reinforced by proposed policy DM8), but it will likely hinge on whether
there is a sufficient evidence base to impose the aforementioned obligations.
Background
Legality - conditions
In terms of conditions, s70(1)(a) of the 1990 Act allows an LPA to grant planning
permission, imposing "such conditions as they see fit". Section 72 of the 1990 Act
expands on this by stating that whilst the power under s70(1)(a) is a general one,
such conditions may regulate the development or use of any land under the control
of the applicant (whether or not it is land in respect of which the application is made)
or requiring the carrying out of works on any such land, so far as appears to the LPA
to be expedient for the purposes of or in connection with the development authorised
by the permission.
Whilst this appears to be an extremely wide remit, the National Planning Policy
Framework (NPPF) requires that conditions should only be imposed where they are:
1) necessary;
2) relevant to planning;
3) to the development to be permitted;
4) enforceable;
5) precise; and
6) reasonable in all other aspects.
I attach an email (Attachment 2) which expands on these heads further.
Legality - planning obligations
In terms of the proposed legality of planning obligations, the starting point is the
language of section 106 of the 1990 Act. This sets out the ways in which land can
restricted by way of an agreement between the applicant and the LPA. This
includes:
1) restriction of development or use of the land in any specified way;
2) requiring specified operations or activities to be carried out in, on, under or over
the land;
3) requiring the land to be used in any specified way;
4) requiring a sum or sums to be paid to the authority on a specified date or dates or
periodically.
Regulation 122 of the Community Infrastructure Levy Regulations 2010 (as
amended) adds to this by setting out the three tests that each obligation must fulfil in
order to constitute a reason for granting permission:
1) necessary to make the development acceptable in planning terms;
2) directly related to the development; and
3) fairly and reasonably related in scale and kind to the development.
Discussion
In relation to a condition seeking to restrict the amalgamation of small retail units, it
would clearly be restricting the use of the land in any specified way in accordance
with the language of section 72 of the 1990 Act. It would then turn on whether such
a condition fulfils the 6 tests set out in the NPPF, which also feeds into the debate
regarding "soundness". Such a condition would be lawful, provided there is a policy
and evidence base which would make it "necessary" and "relevant to planning" to
impose such a condition. Policy DM8(iv) does give us flexibility in this regard by
including the words "where appropriate".
An analogous appeal decision from 2003 involving Greenwich does provide some
guidance. An application to refurbish and amalgamate 19 shops within a town
centre was refused against officer advice. The inspector concluded that the Council
had acted unreasonably, and failed to substantiate its objection on retail grounds.
The Council had claimed that the loss of the individual units would harm the vitality of
the town centre, which needed to retain a range of units to compete effectively.
However, the Inspector noted that the town centre in question was thriving, and there
were opportunities to relocate. He also noted that no development plan or national
policies supported the Council's position, and that the proposed food store had
complied fully with the sequential approach. It was noted that the Council could not
provide evidence to demonstrate the scheme would be harmful.
Whilst not precisely on point, it does indicate how the Planning Inspectorate may
approach such an attempt to resist the amalgamation of retail units. It is obviously
helpful that London Plan Policy 4.9 encourages the sort of policy background DM8 is
seeking to achieve. As long as the required evidence base is available to support
the imposition of such a condition, there should be no question over soundness.
In relation to such conditions restricting PD rights, as long as they follow the format
set out in the previous advice (Attachment 1) there should be no debate over legality.
In terms of a planning obligation for proposals over 1000sqm requiring 10% of
floorspace to be set aside for small/independent retailers, the Council do have a
similar clause within our precedent s106 agreement (albeit in relation to employment
floorspace) which has never been challenged. Admittedly, this does not mean it is
lawful, but has been accepted on a variety of developments.
Such a restriction would seem to fall squarely within the possibilities outlined at
Section 106 of the 1990 Act, namely the "restriction of development or use of the
land in any specified way". This is an extremely wide remit and allows us to control
not only how the development is constructed, but how that development is used.
The obligation then needs to be assessed against the Regulation 122 restrictions set
out above. It would seem common sense that such a requirement would be directly
related to the development given it will involve 10% of the retail floorspace within that
development. In terms of being fairly and reasonably related in scale and kind, the
request is for "at least" 10% of gross floorspace which allows some flexibility but also
is tailored to each development (rather than, for example, requesting X sqm in each
instance).
The key consideration then is whether such a restriction is required to make the
development acceptable in planning terms. This is similar to the "necessary"
requirement for planning conditions, and will hinge on the policy background and
evidence base we have to support such an obligation. Unfortunately there are no
examples of challenges to obligations that seek to provide affordable floorspace of
any kind, presumably due to the wide remit allowed by the 1990 Act.
Matt Evans
Planning Lawyer
For and on behalf of the Corporate Director of Legal, HR & Regulatory Services
London Borough of Hackney
1st Floor, 2 Hillman Street (The Annexe)
London
E8 1FB
DX124200 Hackney 3
Tel:
0208
Fax: 0208 356 6174
Email: [email protected]
356
6395
Attachment 1
Query
Can a condition be used to restrict permitted development rights? If so, is there a
particular format/restrictions on the use of such conditions?
Answer
The short answer is yes, though they should be phrased in a specific way in order for
their lawfulness to be definitive.
Background
As a general starting point, it is worth noting the guidance in the recently published
Planning
Practice
Guidance
(found
here:
http://planningguidance.planningportal.gov.uk/blog/guidance/use-of-planningconditions/what-approach-should-be-taken-to-imposing-conditions/, paragraph 017)
which states:
Is it appropriate to use conditions to restrict the future use of permitted
development rights or changes of use?
Conditions restricting the future use of permitted development rights or changes of
use will rarely pass the test of necessity and should only be used in exceptional
circumstances. The scope of such conditions needs to be precisely defined, by
reference to the relevant provisions in the Town and Country Planning (General
Permitted Development) Order 1995 (as amended), so that it is clear exactly which
rights have been limited or withdrawn. Area wide or blanket removal of freedoms to
carry out small scale domestic and non-domestic alterations that would otherwise not
require an application for planning permission are unlikely to meet the tests of
reasonableness and necessity. The local planning authority also has powers under
Article 4 of the Town and Country Planning (General Permitted Development) Order
1995 (as amended) to enable them to withdraw permitted development rights across
a defined area.
As is clear, the Government accepts that whilst such restrictions should be imposed
in exceptional circumstances, they are not wholly unlawful. In terms of format, case
law suggests it would be advisable to follow the format set out in Appendix A of
Circular 11/95 (the Circular was cancelled but Appendix A was not; the full document
can
be
found
here:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/7715/3
24923.pdf), being:
"The premises shall be used for......…and for no other purpose (including any
purpose in Class........… of the Schedule to the Town and Country Planning (Use
Classes) Order 1987, or in any provision equivalent to that Class in any statutory
instrument revoking and re-enacting that Order with or without modification."
and/or
“Notwithstanding the provisions of the Town and Country Planning (General
Permitted Development) Order 1995 (or any order revoking and re-enacting that
Order with or without modification) no....[specified development]........shall be [carried
out].”
The key is the need to expressly preclude the operation of the legislation referred to
in the conditions above. If there is no reference then it is merely a statement, which
invites the submission of a new application should that restricted use suddenly
become required. However, this is exactly what the GPDO already does (i.e. grant
consent, subject to conditions, for a specific form of development/use) and so such
wording would be useless. The restriction of the operation of the legislation is what
is required.
The reasons for imposing such conditions should also be specific, and not general,
in nature. As an example, a condition was imposed on 5 retail units restricting sales
to non food sales of bulky items normally found on retail parks only, for the reason of
protecting the vitality and viability of the nearby town centre. Although not following
the format above, this was held to restrict permitted development rights (R (Royal
London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin)).
Attachment 2
How does the Local Planning Authority ensure that the six tests in paragraph
206 of the National Planning Policy Framework have been met?
Whether it is appropriate for the Local Planning Authority to impose a condition on a
grant of planning permission will depend on the specifics of the case. Conditions
should help to deliver development plan policy and accord with the requirements of
the National Planning Policy Framework, including satisfying the six tests for
conditions.
The six tests must all be satisfied each time a decision to grant planning permission
subject to conditions is made. The tests are set out below, alongside key
considerations:
TEST
Necessary
KEY QUESTIONS
Will it be appropriate to refuse planning permission without
the requirements imposed by the condition?


Relevant to
planning
A condition must not be imposed unless there is a definite
planning reason for it, ie it is needed to make the
development acceptable in planning terms.
If a condition is wider in scope than is necessary to
achieve the desired objective it will fail the test of
necessity.
Does the condition relate to planning objectives and is it
within the scope of the permission to which it is to be
attached?


A condition must not be used to control matters that are
subject to specific control elsewhere in planning
legislation (for example, advertisement control, listed
building consents, or tree preservation).
Specific controls outside planning legislation may provide
an alternative means of managing certain matters (for
example, works on public highways often require
highways’ consent).
Relevant to the
Does the condition fairly and reasonably relate to the
development to be development to be permitted?
permitted


Enforceable
Would it be practicably possible to enforce the condition?

Precise
It is not sufficient that a condition is related to planning
objectives: it must also be justified by the nature or
impact of the development permitted.
A condition cannot be imposed in order to remedy a preexisting problem or issue not created by the proposed
development.
Unenforceable conditions include those for which it
would, in practice, be impossible to detect a
contravention or remedy any breach of the condition, or
those concerned with matters over which the applicant
has no control.
Is the condition written in a way that makes it clear to the
applicant and others what must be done to comply with it?

Poorly worded conditions are those that do not clearly
state what is required and when must not be used.
Reasonable in all Is the condition reasonable?
other respects
 Conditions which place unjustifiable and disproportionate
burdens on an applicant will fail the test of
reasonableness.
 Unreasonable conditions cannot be used to make
development that is unacceptable in planning terms
acceptable.