Firstly, a big thanks to everyone who reads this blog. While
my total blog views may be half what other blogs get each month, I’m grateful
to all of you who spend a little of your time reading whatever I churn out. Now
onto the business…
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Planning Committee meetings sometimes throw up controversial
moments where the advice given disagrees with what the Members feel. A recent
example of this is the debate over “negative conditions”. Earlier this year we
had the Arlington Tesco’s application before the Committee and a proposed
amendment was made that deliveries couldn’t happen late at night. While it wasn’t
suprising that we were told that Tesco’s couldn’t accept such an amendment, it
was suprising that the amendment couldn’t even be voted on. Some Members were
clearly not happy with the lack of information about this and it was noted in
the minutes for that meeting that Cllr Poole did not agree with this.
Well, it happened again last night during consideration of
the China Gateway application, and the Member proposing the amendment, Cllr
Poole! The proposal was that HGVs would not be allowed on Sundays and Bank
Holidays. Again, we were told that it was a negativing amendment and therefore couldn’t
be accepted. This time round the Officers quoted from the legal guidance which commented on this very issue.
Looking at the guidance, the issue here isn’t that the
Committee is making a condition. It can argue quite rightly that a condition
like that is legal for them to make. However, the developer couldn’t accept it
because it would be seen as unreasonable. In this case its described as “unduly
restrictive” and would make the Committee ultra vires. To quote the full
passage (Circular 11/95):
“A condition
may be unreasonable because it is unduly restrictive. Although a condition may
in principle impose a continuing restriction on the use of land (provided that
there are good planning reasons for that restriction), such a condition should
not be imposed if the restriction effectively nullifies the benefit of the
permission. For example, it would normally be reasonable to restrict the hours
during which an industrial use may be carried on if the use of the premises
outside these hours would affect the amenities of the neighbourhood, but it
would be unreasonable to do so to such an extent as to make it impossible for
the occupier to run the business properly. If it appears that a permission
could be given only subject to conditions that would be likely to be held
unreasonable by the courts then it will be necessary to refuse permission
altogether.”
Cllr Everitt made a comment that this legal advice should have been made available to Members before. I would say in reply that given this happened before with Arlington that Members should have had the sense to Google it months ago if only for their own information were this to appear again...
Ultimately the amendment went no further and the discussion
continued. An amendment was made allowing the Committee to oversee aspects of the Legal Agreement.
I should tag onto the end here that the Localism Act received
Royal Assent earlier this week. That means that hopefully soon we can say
goodbye to the predetermination rules which have caused the Labour Group so
many issues over Manston Night Flights. The DCLG says we should know by next
month(ish) when the major steps come into force.
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