Planning Inspectorate Newsletter - Issue 9
Planning Conditions and Obligations
DoE Circular 11/95 (The use of conditions in planning permissions) says that permission should not be granted subject to a condition that requires the parties to enter into a s106 planning obligation. It also says that no payment of money can be required when granting a planning permission except where there is specific statutory authority.
Until recently we advised Inspectors that, in appropriate circumstances, a negatively worded condition may be used as a prelude to obligations being entered into but which prevents the implementation of the permission until alternative arrangements, such as a s106 obligation, have been put in place.
We advised Inspectors that they might use a condition along the following lines:
“No development shall begin until details of a scheme for the provision of [educational] [recreational] [community services] infrastructure to meet the needs of the development [in accordance with Structure and Local Plan policies] has been submitted to and approved in writing by the LPA. The scheme shall include a timetable for the provision to be made and shall be carried out in accordance with the approved details.”
At the time, we considered that the appropriate circumstances would be where the terms of a necessary obligation had already been substantially agreed in principle or detail, the obligation did what was needed to make the development acceptable, but it had simply not been possible to finalise the obligation, perhaps because of problems in obtaining all necessary signatures or establishing title. In these circumstances, the imposition of such a condition could, we thought, obviate the need to refuse permission since it left the parties to agree how the infrastructure would be provided and made no specific requirement for this to be done through an obligation or financial contribution
However, in a letter to Hives Planning Ltd dated 26 October 2007 
489kb relating to 5 recovered appeals by Arnold White Estates Ltd and CC Trading Ltd the Secretary of State did not accept the Inspector’s recommendation that such a condition should be imposed because in her view it lacked sufficient detail and therefore it failed the test of precision as set out in DoE Circular 11/95. The Secretary of State also felt that a scheme could not be drawn up without requiring the payment of money which would breach the principle that there can be no taxation without clear support in law.
In the light of the Secretary of State’s comments we have advised Inspectors that such a condition should no longer be used. If a proposed development is only acceptable if a financial contribution is made towards the provision of infrastructure and there is no completed and satisfactory obligation to secure payment then the only course of action may be to dismiss the appeal. However, this does not mean that a condition should never be used as an alternative to a missing or unsatisfactory obligation so long as it meets the tests in DoE Circular 11/95.
