Thursday, 17 November 2011

Reasonably Unreasonable

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…
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.

No comments: