PP 2013/102

A potentially unnecessary planning condition raises doubts about the rationality of other aspects of the local planning authority’s determination Circular 11/95: The Use of Conditions in Planning Permissions lays down a six-fold test for the validity of conditions. The first of the six requirements is that the condition must be necessary. As a matter of policy, a condition ought not to be imposed unless there is a definite need for it. In Champion v North Norfolk District Council [2013] EWHC 1065 (Admin) the claimant, a member of a local action group, sought inter alia to quash the grant of planning permission by the local planning authority (“LPA”) for the erection of two silos to store barley, together with associated works including a surface water balancing pond. The application site was close to a river that was both an SSSI and a SAC. The fear of the claimant was that pollution from the proposed development would enter the river. The LPA, supported by Natural England, had concluded that there was no requirement for an environmental impact assessment, nor an appropriate assessment (for the purpose of the Habitats Directive). The planning officer recommended approval, subject to a number of conditions. However, at the meeting of the planning committee one of its members argued for additional conditions that would require monitoring of water quality, with the developer taking “all reasonable steps” if water quality was found to diminish due to the development. The claimant contended that the LPA’s decision to grant planning permission was internally inconsistent and irrational. Having concluded that the omitted assessments were not required, this must have meant that the LPA had decided that there was no risk of the river being polluted by the development. However, the imposition of the additional conditions – against the background of the necessity test – could only mean that the LPA considered that there was a risk of pollution.The court allowed this limb of the claim and quashed the grant of planning permission. It held that the LPA could not rationally adopt both positions at once. Moreover, in such circumstances the decision could not be saved by exercising a discretion not to quash it. The judge went on to say that the LPA would have to consider again whether there was a risk of pollution. If it concluded there was not, then it could grant planning permission but without the additional conditions. However, if it concluded that there was the omitted assessments would have to be carried out. John Martin