The dos and don’ts of planning conditions

I recently provided acoustic expert witness support for a planning inquiry, during which the question of planning conditions was the subject of some hearty discussion.

The council had proposed several planning conditions, and the applicant’s team recommended rewording some. Where possible, both sides had worked collaboratively to agree on amendments, thereby saving inquiry time, but there were still a few conditions on which the wording couldn’t be agreed upon.

On the final day of proceedings, and after we’d got past the scary bits of evidence in chief and cross-examination (I still flinch when referred to as ‘Mr Burton’), we had a round table session to go through the conditions one by one in the hope of coming to a consensus.

For several conditions, the planning inspector asked representatives of each side to explain what they thought the condition in question meant.  On more than one occasion, it became clear that they weren’t sure; and if they weren’t sure, how on earth was anyone else supposed to know in the future?

For the uninitiated, and those of us who need a little reminder, the National Planning Policy Framework (NPPF) states that planning conditions should meet the following 6 tests:

Test 1 – Necessary

This one seems obvious, but it’s surprising how many planning conditions creep in because they were used last time and are included because ‘better to be safe than sorry’.

Test 2 – Relevant to planning

From an acoustic perspective, I often see planning conditions that refer to the Building Regulations (e.g., Part E—Resistance to sound, and, more recently, Part O—Overheating). I would, and have, argued that these are not relevant to planning and can safely be removed as they will be picked up by Building Control.

On this point, NPPF states “Conditions requiring compliance with other regulatory regimes will not meet the test of necessity and may not be relevant to planning.  Use of information to remind the applicant to obtain further planning approvals and other consents may be more appropriate.”

As such, better to signpost these rather than include them as conditions.

Test 3 – Relevant to the development to be permitted

For me, this is partly covered in Test 1 but could equally mean including conditions on, for example, noise limits in bedrooms at night when there aren’t any bedrooms in the development.

As part of the Agent of Change principle, this may also include trying to restrict an existing development, e.g., requiring an existing music venue to reduce its noise levels to make a proposed residential development feasible.

Test 4 – Enforceable

If there is no way to demonstrate compliance or non-compliance with a condition, there is no point in having it as a condition.  In noise terms, this might be a requirement to demonstrate that plant noise is 10 dB below the background noise level at a receptor.  This is arguably unmeasurable at the receptor although could be demonstrated through noise measurements close to the plant and extrapolated back to the receptor.

Test 5 – Precise

Including generically worded conditions can seem efficient when writing the condition but can lead to confusion and misunderstanding at the time of discharge.

An acoustic example is plant noise limits compared to background sound levels.  Given that background sound levels are likely to have been measured before the planning application was made, it seems sensible to include the measured results and/or plant noise limits rather than specifying “no greater than background”, “at least 5 dB below background”, etc.  Terms like “inaudible” are subjective and hence open to interpretation so are best avoided in favour of objective requirements.

Test 6 – Reasonable in all other respects

This one feels like an “in case I forgot anything” test to me but is a useful final check to make sure the conditions are doing what was intended.  Additionally, it could cover the cost of implementation (e.g. if the condition met all of the above tests but cost more than the development to implement, it is arguably unreasonable).

The experience gave me a newfound respect for planning conditions and the realisation that less is sometimes more. Concise and precisely worded planning conditions that are relevant to the development in question will save everyone’s time in the long run, and their drafting is an art in itself.