Planning Law Foundations – Planning Conditions

What are Planning Conditions?

Planning permissions are granted subject to conditions which control how the consented works or uses are carried out. Planning conditions can be attached to a planning permission and/or implied by statute. They can cross refer to documents provided with the planning application to which the planning permission relates, to ensure that only the proposals applied for and approved are delivered in practice.

Planning conditions can require discharge prior to commencement of the approved project, apply on an on-going basis or relate to decommissioning or site restoration once the project has come to an end. Non-compliance with planning conditions could invalidate a planning permission (and render a project unlawful), attract enforcement action (which is recorded on a public register) or, ultimately, constitute a criminal offence.

Who do they affect?

• Any person relying on the planning permission must comply with conditions attached to that permission. This will include the developers and builders, and occupiers and tenants who use the property day-to-day.

• Planning authorities and decision-makers, which can use planning conditions to control the construction and operation of a project (such as requiring environmental remediation of contaminated land, imposing limits on noise emissions, restricting trading hours, limiting the operational life of the scheme to a specified number of years). Planning authorities are responsible for enforcing planning conditions.
• Investors, mortgagees, landlords and future owners of the land. The extent to which planning conditions limit the construction or use of land has a direct impact on its value. Where the land is to be used for a different purpose to that approved under a planning permission, a new planning permission may be necessary in order to comply with planning law.
• Neighbours and third-party users of the affected land, who will be impacted by how a project is run and who have the right to report any suspected breaches of planning condition to the planning authority.

How can Davidson Chalmers Stewart help?

A planning authority can grant different types of planning permission and more than one permission might be relevant to the same project. As each of these permissions could be subject to its own planning conditions, it is important to know how the different “layers” of conditions interact to ensure regulatory compliance.

Planning conditions must adhere to specific legal rules in order to be enforceable. We advise clients on whether planning conditions are valid and help them appeal against onerous conditions which would unduly impact on the deliverability of a project. We also liaise with planning consultants and statutory consultees (such as Scottish Government agencies) on proposed wording for conditions.

We assist a wide range of clients in modifying conditions, compliance with conditions, evidencing discharge and enforcement issues, including appeals and challenges. We carry out due diligence and compliance audits where property sales are in prospect and draft commercial agreements and leases to ensure appropriate warranties, indemnities and apportionments of liability are in place.

We also act for objectors to planning applications seeking specific planning conditions to be attached to consents and for complainants on reporting alleged breaches of planning conditions.

Please contact Jacqueline Cook, Head of Planning Law, to find out more.

Disclaimer
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.