Planning Conditions and Informatives

[Stewpot]

I have a plot in Scotland which has Planning Permission in Principle (Scottish version of Outline) to build a house.

 

Condition 7 says that I have to show the position, width and surfacing of the access when applying for reserved matters approval. There are no other specified requirements pertaining to the access.

 

We've applied for reserved matters, and in the consultation process, the roads department has come back and said:

 

Quote

 

... the submitted documents do no show the proposed access to be constructed as per my standard service layby detail DC-3...

 

In summary, I shall require additional information confirming that the site access will be constructed incorporating a service layby DC-3.

 

 

The need for a lay-by, and reference to detail DC-3 is news to us.

 

On the planning portal, documents pertaining to the original PPP show that the above was indeed raised during consultation, but it didn't make it to the Approval Notice. The Officer's Report, available from the portal, concludes by recommending approval, subject to a list of conditions to be attached to the Approval Notice. None of them mention a lay-by or detail DC-3. But then it says:

 

Quote

 

Informatives

It should be noted that:

 1    In respect of Condition 7 above, the proposed access shall be formed as per standard service layby detail DC-3 unless otherwise agreed in writing by the planning authority.  The access shall be formed to the following specification: [etc].

 

 

That Informative is nowhere on the Approval Notice.

 

Is the need to construct this lay-by enforceable?

 

[Temp]

18 hours ago, Stewpot said:

Condition 7 says that I have to show the position, width and surfacing of the access when applying for reserved matters approval. There are no other specified requirements pertaining to the access.

 

Can you post the exact wording of the condition. It normally says you must get the details approved or similar.

[Stewpot]

Yes, it does, but only in terms of width, position and surfacing:

 

Quote

7. No development shall commence until a detailed drawing showing the position, width and surfacing of the proposed access is first submitted to and approved in writing by the planning authority. The access shall be completed in accordance with the approved drawing before the dwellinghouse hereby approved is occupied.

Reason: To ensure the site can be safely accessed, in the interests of road safety

 

During the current consultation, the roads department have come back and said:

 

Quote

 

As the principle of development has already been established, I shall assess whether the submitted plans meet the conditions attached to the 18/xxxx/PPP application.

The access to the site is covered in condition 7, and the Roads Planning Service response to the 2018 application giving information as to how the access should be formed. However, the submitted documents do no show the proposed access to be constructed as per my standard service layby detail DC-3. The Roads Planning Response also looked to ensure that the driveway is not steeper than 1 in 12. The gradient of the driveway is not indicated in any of the submitted documents.

In summary, I shall require additional information confirming that the site access will be constructed incorporating a service layby DC-3 and the driveway will not be steeper than 1 in 12.

 

 

It is true that his department recommended these details as part of the initial consultation process, and they got mentioned in the Officer's Report as a proposed Informative. But these are both consultation documents, and the recommendations did not make it onto the Approval Notice in any form. He  states "I shall assess whether the submitted plans meet the conditions attached to the 18/xxxx/PPP application." But then it seems he goes on to assess condition 7 by a his earlier consultation response, not by the actual conditions attached to the Approval.

 

 

 

 

[Temp]

You can try and argue but he will have a reason for wanting the layby, presumably traffic speeds are a bit high?

 

In the end I think you will either have to provide what they want or ask them to formally refuse to discharge the condition. If they formally refuse to discharge the condition you can appeal that refusal (subject to a 6 month time limit). The Appeal Inspector has the power to accept your alternative proposal but beware because they can also impose new ones or make them more onerous. Worse? 

 

To win at appeal you would have to show that the condition failed one of the six tests for conditions in the NPPF..

https://www.gov.uk/guidance/use-of-planning-conditions

Quote

 

Paragraph 55 of the National Planning Policy Framework makes clear that planning conditions should be kept to a minimum, and only used where they satisfy the following tests:
1. necessary;
2. relevant to planning;
3. relevant to the development to be permitted;
4. enforceable;
5. precise; and
6. reasonable in all other respects.

These are referred to in this guidance as the 6 tests, and each of them need to be satisfied for each condition which an authority intends to apply. See also guidance on the use of model conditions.
 

 

 

If you want to appeal i would try to make a case for more than one of those tests not being met. You should also consider hiring a planning consultant first to give his opinion on your chances and possibly handle the appeal.

 

Edited July 17, 2021 by Temp

[Temp]

3 hours ago, Stewpot said:

But then it seems he goes on to assess condition 7 by a his earlier consultation response, not by the actual conditions attached to the Approval.

 

Problem is the condition only requires you to get approval for the design of the access. It doesnt say anything about the design required. That doesn't mean they dont care about it.

 

We had to get our bricks approved. The condition didn't say anything about their preference for the bricks. I found some nice but expensive hand made bricks. Sales Rep said they had never been refused. Well our planning officer refused them saying they had too much texture. 

[Stewpot]

4 minutes ago, Temp said:

Problem is the condition only requires you to get approval for the design of the access. It doesnt say anything about the design required.

 

That's the situation exactly.

 

11 minutes ago, Temp said:

That doesn't mean they dont care about it.

 

Indeed. But they seem to have neglected to let the developer know about this.

 

 I'll take your comments on board, but you'll understand if I hope you're wrong.

 

Thanks.

[Ferdinand]

I would suggest that the Service Layby is so that people can stop for your plot without pulling up on or impeding the road.

 

One alternative may be to set your gate back from the road, such that you can pull into the first say 6m of your drive when you get home.

 

Phone the person up who gave the feedback and ask what it would be for.

 

To me the above reads that you do not have the formal requirement to provide a layby, and you may be able to make that stick because "that is what it says". But I think it may be expedient for you to provide it for your own good and to make it safe, unless you are absolutely sure this is not a problem.

 

To my eye this would not be a wise hill to choose to die on, unless you are absolutely sure it is a non-issue.

[Stewpot]

17 hours ago, Ferdinand said:

I would suggest that the Service Layby is so that people can stop for your plot without pulling up on or impeding the road.

 

One alternative may be to set your gate back from the road, such that you can pull into the first say 6m of your drive when you get home.

 

Phone the person up who gave the feedback and ask what it would be for.

 

To me the above reads that you do not have the formal requirement to provide a layby, and you may be able to make that stick because "that is what it says". But I think it may be expedient for you to provide it for your own good and to make it safe, unless you are absolutely sure this is not a problem.

 

To my eye this would not be a wise hill to choose to die on, unless you are absolutely sure it is a non-issue.

 

Yes, I agree, it does need to be safe, and made to a suitable standard; I'm not trying to duck out of that. As you say, 6m of driveway, made to a high standard, would be a reasonable thing to do.

 

But the issue is also exactly as you say - doing what is required in the conditions. In fact the last thing I want to do is appeal against the condition. Quite the opposite, I want the council to apply the condition precisely, and no more.

 

 So, what I'm asking, really is: Are the explicit conditions the limit of what the council can require? Putting it like that, maybe 20 minutes with a solicitor would be a good idea.