Wed, 08 Apr 2020
Planning conditions are useful tools that can address a wide variety of objections. Conditions can enhance the quality of a development, mitigate its adverse effects, and pave the way to permission. But there is a limit to what conditions can do. In this case, the Court of Appeal held that an Inspector was not obliged to consider a proposed condition in carrying out a policy test.
Paragraph 145 of the NPPF exempts “buildings for agriculture” from development that is inappropriate in the Green Belt. Whether a building is a “building for agriculture” is largely if not wholly a matter of fact. The Inspector found that the proposed development was not a building for agriculture. The Claimant did not challenge this finding. Instead, the Claimant argued that the Inspector had failed to consider a proposed condition which would have ensured agricultural use of the development by restricting the occupation of the dwelling to agricultural workers.
The Court of Appeal held that this was not an error of law. Planning conditions must fairly and reasonably relate to the development permitted. Logically and legally, the suggested condition had no bearing on the prior question of whether the proposed development was a “building for agriculture”. Since the proposal did not clear this hurdle, the condition was not a material consideration.
In this case, the Claimant overappreciated the legal relevance of a proposed condition. The inquiry did not turn on whether a condition could make a development acceptable in planning terms. The question was what the development was. Conditions are irrelevant to this question. They cannot change a development from what it actually is into something that it is not. They do not become material considerations simply because their aim overlaps with the aim of a policy test. This case serves as a reminder to practitioners that what may appear to be a crucial point at inquiry may in fact be irrelevant as a matter of law.