Unless otherwise agreed?

In August this year, the Court has again reminded us to exercise care in drafting planning conditions, which seek to provide flexibility.

The High Court has once again been asked to consider the use of wording like “unless otherwise agreed” in a planning condition. Known as a tailpiece, this form of wording was used regularly to give a degree of flexibility to the discharge of certain planning conditions. The High Court has scrutinised this practice, in particular, in the 2009 case of R (Midcounties Co-operative Ltd) v Wyre Forest DC (2009), in which the grant of outline planning permission for a supermarket was challenged.

A condition on that permission provided that the food store should not exceed a maximum floor space “unless otherwise agreed in writing with the Local Planning Authority”. The Court held that the tailpiece was unlawful as on its face it enabled development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it did so outside any statutory process.

In the recent case of Hubert v Carmarthenshire County Council, the Court once again considered a tailpiece, this time, imposed on a permission for a wind turbine. The condition stated that the turbine was to be a particular size “unless given the written approval of the local planning authority”. The Court held that the wording of the tailpiece would permit changes so that the scale and impact of the turbine could be different from that for which permission was granted. The principle established in Midcounties (above) was applied given the importance of the condition to the permission’s subject matter and the significance of the turbine’s size to its environmental effects. The Court held that the tailpiece could be severed – leaving the permission without the tailpiece in place.

There remains the possibility for certain planning conditions to provide a degree of flexibility, but the Court’s decision helpfully reminds us to exercise care when drafting conditions to avoid using tailpieces to extend the scope of development and circumvent statutory processes.

Hubert v Carmarthenshire County Council (2015)

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