Not certain

In considering an appeal against the refusal of outline planning permission for three dwellings in south Devon an inspector gave his attention to whether a Grampian condition could be imposed to overcome concern about the effect of the proposed access on highway safety (DCS Number 400-030-526).

The inspector related that the access would be achieved by crossing over land which was not in the ownership of the appellant. The council maintained that the access could not be delivered. The appellant contended, however, that a right of way existed over the land and the claimed right of way was the subject of current and ongoing litigation. 

The appellant suggested that a negatively worded, or Grampian, condition could be applied to any grant of planning permission in relation to the scheme, which would ensure that the proposal could not be built until and unless access over the adjoining land was secured. In this respect the council put it to the inspector that, given the uncertainty regarding the litigation, there was insufficient evidence that such a condition could be satisfied before the expiry of the time limit imposed by any planning permission.

The inspector recorded that Planning Practice Guidance provides that a negatively worded condition should not be used where there are no prospects at all of the action in question being performed within the three-year time limit for implementing a planning permission. Whilst acknowledging that matters of litigation can take time to resolve and that there would be the possibility of any judgment being appealed which would result in further delays, he reasoned that the ‘no prospects at all’ requirement for the use of a negatively worded planning condition sets a very high bar. He concurred that the time taken for resolving such matters can be considerable, but judged that it could not be said that the action in question had no prospects at all of being performed within the required timeframe. On this basis he concluded that such a condition, which included the additional requirement that the access be of a certain width, could be applied in the event that the appeal was allowed. 

The inspector concluded that it had been sufficiently demonstrated that the development could deliver the requisite vehicular access to the site to ensure safe movement of vehicles and pedestrians. 

Background information concerning Grampian conditions, together with appeal examples, can be found at section 4.4131 of DCP Online.