8 February 2016

Trump case sounds warning on planning conditions

A recent Supreme Court case involving Donald Trump's golf course in Aberdeenshire has the potential for significant ramifications in how conditions attached to planning permissions are interpreted.

The decision was the final instalment of a long running protest from Mr Trump against proposed a wind farm development off the coast of Aberdeenshire, some 3.5km from his golf course.  The concern was that the development would be seen by people using the golf course, materially diminishing the amenity.

Two grounds of challenge were advanced.  The first ground involved the statutory construction of the Electricity Act 1989..  The second ground concerned the validity of Condition 14 attached to the consent.

Condition 14 required the submission and approval of a design statement before commencement of the development.  Mr Trump argued that the condition was void for three reasons.   Firstly,  the condition does not require construction in accordance with any approved details.  Secondly,  there is no indication of what compliance with the condition would entail.  Finally,  the condition could allow those approving the details to agree a departure accepted the scope of the development.

The previous approach of the development industry, following a long line of cases on the construal of planning permissions, has been to read such a condition literally. If there is no express requirement in the condition to undertake the works which a particular approval has related to, then wording cannot be implied in, and the Council could not enforce subsequent non-performance. The reason for this approach was clear: planning permissions are public documents, and non compliance with a condition can lead to criminal sanctions.

In their judgments on this particular ground, both Lord Hodge and Lord Carnwath have suggested a different approach. It may be possible to imply a further obligation into a poorly worded condition  - such as condition 14 in the Trump case - to require construction in accordance with approved details. Whilst both Judges appreciated that caution should be exercised on this line, they saw no reason in principle why planning permissions should be treated differently to any other legal document, where implication is an accepted doctrine.

Ultimately the challenge failed on both grounds, but if the decision is followed, the ramifications for the development industry are clear.  Conditions attached to planning permissions could expand after the date of grant to take into account the "intention" of the granting authority.  No longer can developers be sure that strict adherence to particular wording may mean compliance (for example, the exact situation in this case, where details are approved with no obligation to build out in accordance with them). 

This decision in theory should facilitate a more open dialogue between all parties to ensure, at the date of grant, everyone is clear on what is expected of them.  That may not be the reality.  For developers, and purchasers of development sites, the decision creates a problem. How are they to approach inadequate conditions – on the basis that Councils will look to fix them, or take them literally? What value do you attribute to the performance of the condition, and therefore a site as a whole?

Local planning authorities should not use this decision as a way of rectifying mistakes.  It is far better, and legally compliant, to have clear and precise conditions from the outset on the face of the decision notice.

This is certainly something to keep an eye on, along with the multitude of other changes to the planning system currently taking place.


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