Powers to impose planning conditions The general powers for local planning authorities (LPAs) to impose conditions on the grant of planning permission are set out in sections 70 and 72 of the Town and Country Planning Act 1990 (TCPA 1990), although statutory powers to impose conditions are also set out in TCPA 1990, ss 73, 73A, 96A and Sch 5 Pt 1. The Secretary of State (SoS) also has powers to impose conditions on appeal in TCPA 1990, ss 77, 79, 177 and Sch 6. TCPA 1990, s 70 provides that where an application is made to the LPA for planning permission, the LPA may grant planning permission, either unconditionally or subject to such conditions as they think fit, or refuse planning permission. TCPA 1990, s 72 provides that, without prejudice to the generality of TCPA 1990, s 70, conditions can be imposed on the grant of planning permission: • for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application

Planning analysis: Under the Forestry Act 1967 (FoA 1967), the Forestry Commission has the power to serve a restocking notice on a person who carries out tree felling without a felling licence. A person on whom a restocking notice has been served may appeal to the Secretary of State. This is now the key case on the relationship between the planning and forestry regimes. The Court of Appeal allowed the Secretary of State’s appeal, finding that the future prospect of land being allocated for housing development, or the public interest in such development taking place, are irrelevant to the exercise of the power to serve a restocking notice and the ambit of any appeal against such a notice. The case provides important guidance which will be relevant for developers and landowners seeking to develop land which may require the removal of trees, and for those appealing against restocking notices. Written by Edward-Arash Abedian, barrister at Landmark Chambers.

Planning analysis: In Newcastle City Council v SSLUHC, the High Court allowed an application for statutory review and quashed a planning decision granting permission for a residential development at a site on the Newcastle Quayside. The inspector had considered that the harm caused to the setting of the nearby heritage asset St Ann’s Church would be ‘less than substantial’. In so deciding she took into account the ‘key constraints of the plot’ which was to be developed, in particular that ‘there could not be a vastly different design response which would further minimize the harm’ to the heritage asset. The availability of alternative designs was relevant to the balance to be struck between harm and benefit, but not relevant to the prior stage of assessing the harm caused by the proposal. The inspector had taken into account an irrelevant consideration, and the decision was quashed. Written by Siân McGibbon, barrister at 4-5 Gray’s Inn Square.]

Decision-taking by committees and officers of an LPA The determination of planning applications for the development of land within its administrative area and the making of related planning decisions are functions of the relevant local planning authority (LPA). Under section 101(1) of the Local Government Act 1972 (LGA 1972), each LPA may make arrangements for the discharge of their functions by a committee, sub-committee or officer. Under LGA 1972, s 101(2), a committee or sub-committee can arrange for the exercise of a function by an officer. To enable efficient decision-making, each LPA will, in its constitution, usually in its scheme of delegation, specify the type of planning decisions which are delegated to and can be taken by planning officers, and those which need to be determined by its planning committee or sub-committee. In England, it is currently up to each LPA to set the conditions under which planning functions are delegated to officers. Commonly, schemes of delegation across LPAs are drafted to empower officers to determine all applications for planning

Planning analysis: This High Court judgment relates to the legal requirements for environmental impact assessments (EIA) under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (EIA Regulations 2017) and habitats regulations assessments (HRA) under the Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (HRA Regulations 2017) in the context planning decision making. The case specifically considers the downstream use and processing of manure from an intensive poultry unit (IPU) and its likely impact on watercourses and habitats. The judgment emphasises that local planning authorities (LPAs) should assess indirect and cumulative impacts as well as direct impacts and should consider and evaluate these rather than simply providing information about them. The assessment should be broad and focus on real world impacts. The existence of parallel regulatory regimes does not relieve LPAs of their duty to fully assess the proposed project and its potential impacts. Written by Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Planning analysis: In this decision, the First-tier Tribunal (FTT) considered whether information sought under a subject access request in relation to a planning application was exempt from disclosure under regulation 12(4)(d) of the Environmental Information Regulations 2004 (‘EIR 2004’). This exception applies to ‘material which is still in the course of completion, to unfinished documents or to incomplete data’. The judge held that an external report prepared, by a consultancy for a local planning authority, did not fall within the scope of this exception. The case will be of interest to those who are considering making, or have received, an information request under the EIR 2004 or the Freedom of Information Act 2000 (FIOA 2000). Written by Elizabeth Dunn, partner, and Sarah Sutherland, practice development lawyer, at Burges Salmon LLP.

Under section 57 of the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for a material change of the use of any buildings or other land. In addition, any conditions or limitations attached to a planning permission must be complied with. The buyer will be liable for any pre-existing breach. Therefore, it is necessary to check that the current use of the whole property is authorised and that any conditions attached to that use are being complied with, or whether any unauthorised use or breach of condition has become immune from enforcement action. For more information see Practice Note: Material change of use. Is the use authorised? Check the permitted use of the property, or, as relevant, each planning unit, and establish whether that use is authorised by: • an express planning permission • a certificate of lawful use, or • permitted development rights If the permitted use is not the use expressly permitted by a planning permission, do not assume it is unlawful. The use may be authorised by permitted

Conservation areas are parts of localities designated under the Planning (Listed Buildings and Conservation Areas) Act 1990 (in England) and the Historic Environment (Wales) Act 2023 (HE(W)A 2023) as areas of special architectural or historic interest, the character or appearance of which is desirable to preserve or enhance. See Practice Notes: Conservation areas in England and Conservation areas in Wales. What are the implications of the property being in a conservation area? If the property is in a conservation area: • planning controls are stricter—permitted development rights are generally less extensive in conservation areas; some conservation areas may be subject to Article 4 directions, which further limit permitted development (see: Permitted development—overview and Practice Note: Article 4 directions) • in England, conservation area consent is not required for demolition of any buildings. Proposals for the demolition of these buildings are considered by the local planning authority (LPA) through an application for planning permission. See Practice Note: Planning issues in demolition • in Wales, a person must not carry out works for the demolition of a building in a conservation

Is listed building consent required? Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (P(LBCA)A 1990) (in England) and section 88 of the Historic Environment (Wales) Act 2023 (HE(W)A 2023) (in Wales from 4 November 2024) state that no person shall execute or cause to be executed any works for: • the demolition of a listed building, or • its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest unless the works are authorised by the grant of listed building consent. When assessing whether works require listed building consent, remember that listed building control can extend beyond the principal building. In England, a ‘listed building’ includes any object or structure fixed to the building and certain objects or structures within its curtilage that have formed part of the land since before 1 July 1948. In Wales, listing can also include objects or structures fixed to the building and certain structures within the curtilage constructed before 1 July 1948. As a result, works to

Planning conditions and planning obligations commonly restrict what and how development can be carried out on land or buildings to which they relate. See Practice Notes: Planning conditions—key points and Planning obligations—key points. Planning obligations Agreements made under section 106 of the Town and Country Planning Act 1990 (known as section 106 agreements, or planning obligations) regulate the use of land, and bind successors in title. They are registered as local land charges. They should define the land bound by the agreement by reference to an attached plan, which usually corresponds to the planning application site boundary for the development to which it is related. A section 106 agreement is usually completed before the issue of a decision notice granting planning permission. How are planning obligations revealed? Check the results of the local land charges search (LLC1). Planning obligations are registrable as local land charges. From 12 April 2015, HM Land Registry has responsibility for the local land charges register. Transitional provisions give HM Land Registry power to apply the transfer gradually by giving notice to the relevant

Importance of establishing the planning history of a site For transactions involving the creation, acquisition or disposal of an interest in land, it is important to determine the lawfulness of any existing or proposed uses or operational development on that land. This is because planning permission is required for the ‘development’ of land as defined in section 55 of the Town and Country Planning Act 1990 (TCPA 1990) (see Overview: Is planning permission required?), unless it is permitted pursuant to a development order such as the Town and Country Planning (General Permitted Development) Order 2015, SI 2015/596 (in England) or the Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418 (in Wales) (see: Permitted development—overview). If planning permission is not obtained where it is legally required, or if planning conditions on a permission are not complied with, this constitutes a breach of planning control, which can be enforced against by the local planning authority (LPA) (see: Planning enforcement—overview). All decisions to grant planning permission are taken by public authorities and so are subject to potential

How are section 278 and section 38 agreements revealed? Check the results of the local search and the seller’s replies to enquiries. Section 278 agreements are only registrable as local land charges if: • they have been entered into pursuant to an obligation in a s 106 agreement, or • the highway authority (HA) has declared that there has been a financial default under the agreement Section 278 agreements Section 278 agreements are used where a developer requires off-site work (other than simple access) to be carried out to a highway. Design and construction of the works on the highway may be undertaken by the HA at the developer’s cost. Alternatively, the agreement may appoint the developer as the HA's agent to carry out the works (in which case the agreement must be supported by a bond). If the works are carried out by the developer, a certificate of practical completion is issued once the works have been completed to the satisfaction of the HA engineer. After satisfactory completion of a 12-month