Toys out of the pram

A rather bizarre situation arose after an Essex council refused to discharge pre-commencement conditions attached to the planning permission for 14 flats on the basis that development had already commenced (DCS Number 400-019-182).

The three conditions required: details of materials and hard landscaping; an investigation of any contamination on the site together with measures for remediation; and details of surface water drainage. “In this highly unusual case,” the inspector recorded “the Council refused all three applications to discharge the conditions on the basis that the actions of submitting the details required by the conditions to the Council, and their subsequent approval, should have been done before the development permitted by the original planning permission was commenced. Although the details were submitted, the development commenced before the Council gave its approval to them. The Council now argue that as the conditions are worded on a pre-commencement basis, they were not in a position to then discharge the conditions.”

The inspector noted that there was no dispute about the acceptability of the details submitted. He had no concerns about them either. He considered that the conditions did not ‘go to the heart’ of the permission but reasoned that it was not the place under a s78(1)(b) appeal to determine whether the original planning permission remained valid, and that s191/192 of the Act remained available to the appellant to establish the lawfulness of the development. Against this background the inspector allowed the appeals.

From a legal standpoint the council might possibly have had right on its side but we would suggest that a more pragmatic and grown-up approach might have been in the public interest in these circumstances.

Information concerning the discharge of planning conditions can be found at section 4.4119 of DCP Online.