Stalling for time

None of us wishes to see stalled development blighting our cities, one would hope. Nonetheless, an inspector has found that a condition precluding the commencement of development of a site in west Yorkshire before contracts had been let was unnecessary, unreasonable and unenforceable (DCS Number 400-016-396).

The appeal related to a mixed use development of up to 11 storeys comprising residential with a ground floor A3 or A4 unit. The disputed condition stated “No development shall take place before contract(s) for the carrying out of the redevelopment of the site, including the works contract, have been made, and evidence of such contract(s) has been submitted to and agreed in writing by the Local Planning Authority.”

The site had a long planning history, the inspector noted, having originally been granted permission in 2008. The condition was imposed in 2015 in order to ensure a timely development without years of further delay. At that time the outline planning permission had approximately a year left to run, and there was concern that a ‘technical start’ could be made to prolong a permitted scheme indefinitely. By not completing the scheme, a blighted cleared site would be left, making no contribution to the regeneration of the area.

The inspector observed that the reason given for the condition on the planning permission referenced the visual amenity and character of the area, not the objective of ensuring the completion of the development. If it were the latter, Planning Practice Guidance advises that conditions requiring a development to be carried out in its entirety would fail the test of necessity, she noted, and goes on to comment that such a condition would be difficult to enforce due to the range of factors that can influence a decision whether or not to carry out and complete a development. She found it understandable that the council would wish to ensure that the site was not cleared and left in an untidy state, particularly as it was located in a prominent location on a main route into the city. The condition, however, required evidence of the works contract to be submitted and agreed by the council, and as the wording of the condition was very broad in its scope it was unclear to her what the council was looking to approve. Either it could be evidence that a contract was in place or it could be the terms of the contract itself. If it were the latter, and the council did not approve the contract, its intervention in this regard would be unreasonable. She was also mindful that, should the contractor go into administration during the development, the council would be unable to enforce the completion of the scheme.

The inspector reasoned that whilst the redevelopment of the site had clearly stalled, no doubt partly due to the recession, there appeared to be no evidence that a developer would not complete the scheme once committed to it. In addition there was no evidence, she found, that if the buildings were to be demolished and the site cleared, the developer would leave the site in an untidy state. She pointed out that if that were to happen, the council would have other powers open to it, such as a Notice under Section 215 of the Town and Country Planning Act 1990 requiring the condition of the land to be remedied, or it could consider issuing a Completion Notice under Section 94 of the same Act.

The inspector acknowledged the council’s concerns to ensure that the redevelopment of the site took place in a timely manner and that the site was not cleared and left vacant detracting from the character of the area, but concluded that the condition was not necessary, and was unreasonable and unenforceable. Therefore, it failed to meet the tests set down in paragraph 206 of the Framework.

The following DCP section is relevant: 4.412

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