On conditions requiring agreements

A proposal for the erection of two houses within 5km of the Thames Basin Heaths Special Protection Area (SPA) failed, an inspector finding no means to secure a financial contribution towards offsetting the impact on the SPA (DCS Number 400-011-084).

The Thames Basin Heaths SPA is an internationally designated site of nature conservation importance, its ground nesting birds being of special interest. Mitigation measures are normally required in the form of contributions towards Suitable Alternative Natural Greenspace (SANG) in order to ensure that recreational pressure from additional development does not have any significant effect on the special interest features of the SPA.

Under Regulation 123 of the CIL Regulations, however, a planning obligation may not be taken into account if it would fund an infrastructure project for which there are already five or more obligations, and the council confirmed that the only SANG with any capacity to provide mitigation had already received more than five financial contributions. As an alternative, the council suggested the use of a condition requiring the appellant to enter into a land management agreement, but the inspector recorded that the Planning Practice Guidance makes quite clear that a condition limiting the development that takes place until a planning obligation or other agreement has been entered into is unlikely to be appropriate; such conditions should only be used in exceptional circumstances in more complex or strategically important development. The erection of two houses did not seem to her to fall within this category. Planning permission therefore could not be granted, she decided, notwithstanding the lack of harm to the character and appearance of the area.

This case contrasts with (DCS Number 400-010-764), the subject of DCP Blog Where there’s a will….. In that case the only obstacle which stood in the way of the residential conversion of offices proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to residents’ parking permits. The inspector was satisfied that a negatively worded condition which prevented the development proceeding until an obligation was entered into was appropriate in the circumstances.

Clearly, it is a matter of judgement for the inspector as to what constitutes exceptional circumstances, but if the lack of a means to prevent residents applying for parking permits constitutes exceptional circumstances, then the lack of a means to secure mitigation to offset impact on biodiversity ought also to constitute exceptional circumstances, oughtn’t it?

The following DCP chapter is relevant: 4.43

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