Enforcement and Conditions

Local authorities may attach planning conditions to a full planning consent. If these conditions are not met then the Council may take a developer to court. They can be prosecuted if found to be in breach of the condition.

Conditions should be used to secure provision and long-term maintenance and management of those aspects of a development  that are required to ensure compliance with planning policy, including renewable and low carbon technologies, as stated in the PPS1 Supplement on Climate Change. The planning authority must take a reasonable view of the extent and nature of the future commitments that developers should be capable of and expected to make. It will not be necessary to use planning conditions to control aspects of a development that can be addressed by Building Regulations.

Planning obligations, or section 106 agreements, are usually used where a financial payment is required from a developer. The section 106 agreement is legally binding between the developer and the local authority. These financial agreements may involve the payment of a “commuted” sum, that is, where a developer may pay a lump sum upfront, rather than making an ongoing payment for maintenance of a particular feature of the development. This can be applied, for example, to cover the costs to the local authority of maintaining new local roads required for the development.

The forthcoming Community Infrastructure Levy (CIL) also offers opportunities to fund community scale infrastructure.

www.pas.gov.uk/pas/core/page.do?pageId=95343

www.pas.gov.uk/pas/core/page.do?pageId=100467

Planning policy requirements which may be secured through planning conditions and obligations could include the following:

• Achievement of decentralised and renewable or low-carbon energy targets
• Delivery against design information or specifications submitted with a planning application, e.g. commitment to install a particular technology or attain a target Code for Sustainable Homes rating
• Provision of technologies or supporting infrastructure by a particular date or before a particular event (‘grampian’ conditions). This is a planning condition that prevents the start of a development until off-site works have been completed on land not controlled by the applicant. This could apply to an energy centre located off site
• Submission of detailed design information or specifications (which can include any aspect of environmental performance)
• Submission of ‘performance certificates’ or similar information following construction e.g. BREEAM Post Construction Review (PCR) or energy monitoring equipment that can be read remotely. It is mandatory to conduct a PCR for the Code for Sustainable Homes and BREEAM 2008, so a separate condition for would not be required if there is a condition to achieve a certain Code or BREEAM rating

Conditions and obligations could include:

• Setting up a contract with an ESCO or other ‘common services provider’ and, through leases or covenants, require occupiers to use the service, provided that the energy costs are reasonable
• Payment into an energy infrastructure fund to contribute to the cost of an area wide energy network (the legal right for a local authority to do this are not yet clear. The mechanism for doing this is likely to be through the CIL once details have been finalised by Government)
• Provision of a financial bond to cover against specific future failures, maintenance or replacement of facilities
• Commitment, at a specific future date or event, to replace/ upgrade the facilities

www.lep.org.uk/files/?ref=FC2M4S3Z-18

www.communities.gov.uk/publications/planningandbuilding/infrastructurelevy

The use of conditions will depend on the individual circumstances and the range of policy tests in CLG Circular 5/05 being met. For example, whether they are necessary and reasonable.

www.communities.gov.uk/publications/planningandbuilding/circularplanningobligations