It is a general principle of planning law that there is no such creature as an implied condition in a planning permission. One obvious reason for this is that a planning permission is not simply a matter of contract between the parties. Conditions should be expressed, they should be clear and they should be in the document containing the permission. Therefore, as para 30 of Circular 11/95: The Use of Conditions in Planning Permissions advises, a condition requiring only that “a landscaping scheme shall be submitted for the approval of the local planning authority” is incomplete. The condition also needs to require the landscaping works to be carried out in accordance with the approved scheme for the condition to be enforceable. Furthermore, an invalid condition that goes to the root of the planning permission has the effect of rendering the planning permission void.
However, the Court of Appeal decision in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638; [2011] PLSCS 139 illustrates a slight inroad into that principle. The case involved a challenge under section 288 of the Town and Country Planning Act 1990 to a planning permission for a wind farm granted by an inspector on appeal. The appellant argued that the inspector had erred in law in respect of two conditions that he had imposed concerning aerodynamic noise sometimes described as “blade swish”. His contention was that the conditions could not achieve their objective of controlling blade swish since they provided only for its measurement – by means of an approved measurement scheme – and not for any effective means of enforcement should the blade swish be found to be excessive. The respondents’ case was that enforcement fell within the conditions because the approved scheme would need to state how any departure from the standards specified in the conditions should be dealt with.
