Power to Impose Conditions to Planning Permission – Suliman v Bournemouth Christchurch and Poole Council [2022]

Trainee planning law solicitor, Issy Bainbridge, discusses the recent case of Suliman v Bournmouth Christchurch and Poole Council and the implications to planning law.

Often, planning permission is granted with conditions, such as materials to be used or time frame to commence the works. In the recent case of Suliman v Bournemouth, Christchurch and Poole Council, the court confirmed the position on some of the key principals to be considered when imposing of conditions.

Suliman v Bournemouth Christchurch and Poole Council [2022]

The Claimant in the case sought judicial review of a decision which granted full planning permission for a large mixed use development on a site which adjoins the Claimant’s home.

Permission for the Claimant to apply for judicial review was originally granted on the following grounds:

• The Defendant (the Council) made an error as to the ability for the imposition of a condition as to the width of the ecological corridor along one of the site’s boundaries, advising the planning committee that no such condition could be imposed; and

• By failing to visit the Claimant’s property to review the impact of the proposed development (which the Claimant had requested), the Defendant acted in breach of the Claimant’s legitimate expectation.

In hearing the claim, the Court considered the Wheatcroft and Newbury tests which are to be applied when deciding whether to impose conditions to planning permissions and the extent that a decision-maker may accept amendments to schemes. These are discussed in more detail below.

The Power to Impose Conditions

Local planning authorities already have the power to grant permissions subject to conditions “as it thinks fit” as per section 70(1)(a) of the Town and Country Planning Act 1990. A condition may modify the development applied for.

However, under Wheatcroft, it was held that the result of imposing a condition must not be a development which in substance is not that which was applied for, i.e., the condition must not cause a substantial or fundamental difference to the development as applied for.

Further, the case of Newbury provided the following 3 limbs:

1.  “a condition imposed must be for a planning purpose”
2. Conditions “must fairly and reasonably relate to the development permitted.”; and
3. Conditions “must not be so unreasonable that no reasonable planning authority could have imposed them”, (the Wednesbury reasonableness test).

Legitimate Expectation

A legitimate expectation may arise from an express promise or representation made by a public body and such representation must be “clear, unambiguous and devoid of relevant qualification”. The onus is on any claimant relying upon the principal of legitimate expectation to provide those criterions.

The Decision in Suliman

As to the Claimant’s first ground (re: ability to impose the condition to widen the corridor), the Court held that the advice provided from the Council to the planning committee as to the inability to impose such a condition was not provided in error as the imposition of such a condition would fundamentally alter the proposed development (Wheatcroft).

Further, although the Court was not satisfied that the first and second limbs of Newbury had failed to be met as the condition did relate to the development, the Court did hold that imposing the condition would not be Wednesbury unreasonable (failure to meet the third limb of Newbury). As this development was pursued under an application for full planning permission, as opposed to outline planning permission, the proposed layout of the development must be shown in detail on a plan submitted with the application and absent of any formal amendment to that plan by the applicant, any grant of permission requires the development to be carried out in accordance with that plan.

The Court proceeded to state that if the planning committee had considered that an increase to the width of the ecological corridor was necessary, the correct approach for the planning committee was to refuse the planning permission and allow the matter to be resolved via an appeal.

As for the Claimant’s second ground (re: breach of legitimate expectation), upon considering evidence provided, the judge held that the Claimant had failed to establish a clear, unambiguous and unqualified representation that the Committee would visit the Claimant’s property, and thus, no basis arose for legitimate expectation. Such finding was based upon the Claimant’s email lacking clarity as to the location of where a visit was to be held.

Both the grounds had failed to succeed and the Claimant’s case was therefore dismissed.

Expert Planning Law advice

Holmes & Hills have a specialist team of planning law solicitors who can provide advice as to conditions, their effect and whether they may be lawfully enforced. Further, you have made a planning application which has been refused, we can advise you as to the merits of an appeal to the Planning Inspectorate and assist you with drafting an appeal, if necessary.