Appeal Success Commutted Sums removed

In 2014, a Council sold surplus offices to a private individual as suitable for housing. Subsequently it granted planning permission to convert the building into 6 apartments as well as an alternative scheme for a nursing home. Amongst other things, the Council imposed 2 conditions on the apartment permission which sought to secure arrangements (in effect commuted sums) for public open space and affordable housing.  

Applying adopted supplementary guidance to those conditions it emerged that the commuted sums would be circa £55000. (on a development six small apartments in  low value North Wales coastal town!!)

After seeking our initial advice the owner re-applied to the Council to remove both conditions on the grounds that the development for apartments would be unviable with that additional cost burden. Despite providing a robust viability assessment with that S73 application and that assessment being accepted as correct by the Councils own advisor (nor disputed by the planners), the planning department refused to remove the conditions not least concluding it wasn't a matter for the Council whether the development made a profit.  

Following a review of the Case Officer report we recommended and prepared an appeal against the refusal on a number of grounds including viability, the need/justification for and reasonableness of the two conditions. 

We are delighted to confirm that the appeal has been allowed in all respects and both conditions have been removed, 

In respect of the Open Space matter the Inspector stated "the size of the contribution has not adequately demonstrated it is proportionate to the scale of the development"  having earlier found that the Council had provided little evidence to demonstrate when a contribution would be required based on the scale of development, how that commuted sum is calculated, and how the development would materially affect existing public open space provision. 

The Inspector found that the "the appellant’s submitted viability appraisal has not been disputed by the Council. The scheme is clearly unviable when commuted sum payments related to affordable housing and public open space are factored in" not least noting the low value of two of the units, whilst giving considerable weight to national advice on the critical viability of small sites, the "acute" shortfall of housing land in the County and that the Council itself had sold the site at a genuine price.   

The appeal is another salutary reminder that is it not simply sufficient to impose planning conditions to secure compliance (as was stated in this case) with a development plan policy or because  i "easy"to tack something onto a permission to satisfy a consultee or because "that's what we always do".  Each condition should be designed to tackle specific problems rather than impose unjustifiable controls and should therefore rightly be subject of scrutiny and justification. Where imposed, a condition must meet each of the six tests National guidance sets out, namely that it is:

• i. necessary; 
• ii. relevant to planning; 
• iii. relevant to the development to be permitted; 
• iv. enforceable; 
• v. precise; and 
• vi. reasonable in all other respects.     

This is our second case within this Local Authority recently where we have argued successfully that conditions of this type should not be imposed, particularly where there is no justification for blanket Open Space payments.  No doubt another will cross our path in the non-too distant future.