Planning conditions, obligations and the Community Infrastructure Levy

The National Planning Policy Framework (NPPF) defines a planning condition as ‘a condition imposed on a grant of planning permission by which otherwise unacceptable development could be made acceptable.’   

Conditions are therefore used to prevent or mitigate unacceptable effects of a development. For example, a new housing development may only be considered acceptable if environmental impacts are avoided, reduced or compensated for. If the applicant proposes that new trees are planted to replace trees that need to be removed, a condition can be used to secure details of the new trees (eg their species, number and location), when they should be planted and how they should be looked after. Without a condition like this, the applicant may not carry out the required planting in the most effective way, or they may not do it at all.  

Conditions can also be used to ensure further details and information are provided which are not available at the time of the decision. For example, an applicant could be required to submit landscaping details or building materials to the local planning authority (LPA) for approval before the development can begin. Enough information should be available to make a good decision, but it can be reasonable to accept that some information will not be known until a later stage. This can still be considered and controlled by the use of conditions. 

Ecological assessments should be carried out before planning permission is granted to identify the likely impacts of the development on wildlife and recommend any necessary measures to avoid, mitigate or compensate for those impacts. A planning condition can then be used to secure the measures necessary to protect wildlife interests. Conditions may also be used to require further surveys to be carried out, for example just before work starts on site. 

Paragraph 56 of the NPPF sets out six tests that all planning conditions need to meet. It states that planning conditions should be kept to a minimum and only imposed where they are: 

1. Necessary  

2. Relevant to planning 

3. Relevant to the development to be permitted  

4. Enforceable  

5. Precise  

6. Reasonable in all other respects 

Reasons for using each condition must be provided by the LPA. It is very important that conditions are worded in a certain way so it is clear what is being asked for.  This enables the LPA to take appropriate action if the applicant doesn’t do what the condition says.  

Any proposed condition that fails to meet one of the six tests should not be used, even if the applicant suggests or agrees to it, or it is suggested by the members of a planning committee or an interested party. 

Statutory consultees (such as Natural England, Environment Agency and Historic England) and anyone else commenting on a planning application, can suggest draft conditions or issues that should be controlled by conditions. The exact wording doesn’t need to be provided. The LPA will then decide whether to use such conditions.  

Some planning conditions require the applicant to do certain things or submit further details before the development can be carried out. For example, details of a landscaping scheme for a housing development might need to be submitted for the approval of the LPA before the development can begin. This process is known as the ‘discharge’ of conditions. 

In most cases the LPA must notify the applicant of its decision to discharge a condition or not within eight weeks, or a longer period as agreed between the two parties.  

If the submitted details are considered acceptable, the LPA will approve the discharge of conditions application in writing and the development can proceed in accordance with the approved details.  

Applicants can apply to remove or vary a condition attached to a planning permission under Section 73 of the Town and Country Planning Act 1990 (as amended). These applications are sometimes called ‘Section 73 applications’ and you might see this on LPA websites. 

Whatever the outcome of the Section 73 application, the original planning permission and its conditions will continue to exist and will still have effect until any new section 73 permission is granted and implemented. 

Permission granted under section 73 constitutes a new, independent permission to carry out the same development as previously permitted, subject to any amended conditions. The LPA may also impose new conditions, provided that they don’t materially change the proposal and the conditions could have been imposed on the earlier permission. 

The new planning permission sits alongside the original one, so it is up to the applicant to decide which permission to implement.  

Decision notices for the grant of planning permission under section 73 should include any new or amended conditions, and restate the conditions imposed on earlier permissions that are not yet discharged or varied.  

Planning obligations are legally binding obligations (requirements) that can be used to make a development acceptable in planning terms. Planning obligations are secured in an agreement entered under Section 106 of the Town and Country Planning Act 1990 (as amended) generally between the applicant and the LPA but can include others such as landowners. These planning agreements are commonly referred to as Section 106 agreements. Planning obligations run with the land, so any future owners of the land are legally bound by them. 

Planning obligations are agreed to by the applicant and are used to secure a variety of positive obligations that can’t be secured by condition. These can include affordable housing, green space and financial contributions towards the provision of measures to mitigate the negative impacts of a development. For example, an applicant could sign up to a woodland management plan to help offset the impact of a development proposal for new woodland holiday lodges. 

Planning obligations can be used to secure off-site mitigation, whereas planning conditions can only be imposed on land within the application site boundary, or land which is in the applicant’s control. 

Planning obligations can also be secured via a unilateral undertaking, which is a simplified version of a Section 106 agreement that is quicker and more straightforward to complete. It is only entered into by the applicant (and anyone else who has a legal interest in the land). The LPA is not party to a unilateral undertaking.  

A unilateral undertaking is often used by an applicant to propose planning obligations at a planning appeal, where the LPA refused the planning application and was therefore unwilling to enter into a Section 106 agreement. 

Planning obligations should only be used where it isn’t possible to address unacceptable impacts through a planning condition and must meet all the following tests: 

1. Necessary to make the development acceptable in planning terms

2. Directly related to the development

3. Fairly and reasonably related in scale and kind to the development

The LPA must secure all necessary planning obligations via a Section 106 agreement or undertaking prior to issuing a planning permission.  

An applicant, or the future owner/occupier of the land, can apply to the LPA to have an obligation either modified or discharged (meaning it will cease to have effect). 

The Community Infrastructure Levy (CIL) is a fixed charge that is levied (imposed) on new development. It came into force in 2010 through the Community Infrastructure Levy Regulations 2010 (as amended). It is used by local authorities in England and Wales as a tool to help them deliver the infrastructure needed to support development in their areas, such as parks and green spaces, flood defences, transport, healthcare and community facilities to name just a few. Local authorities cannot, however, use the levy to fund affordable housing. Under the CIL Regulations, local authorities must publish a list of infrastructure projects that have been funded by CIL (and Section 106 agreements) in an annual infrastructure funding statement (as set out in Schedule 2).  

Certain developments may be liable for a charge under CIL if an LPA has an adopted charging schedule for its area. It is up to the individual LPA whether to adopt CIL or not – it is not compulsory. LPAs must collaborate with the local community, developers and other stakeholders to ensure that their charging schedules are realistic and not set so high as to make development financially unviable. 

A proportion of CIL is passed to the community where it's raised. A town/parish council will receive 15% of the CIL income raised in the parish (capped at £100 per existing dwelling). Parishes that have an adopted neighbourhood plan will receive 25% of CIL (uncapped).  Town/parish councils must publish what money they have spent on projects in an ‘infrastructure funding statement’ every year for transparency.  

Community organisations can apply to their local authority for CIL funding to help them fund community- led infrastructure projects in their local area. 

CIL funding is intended to provide infrastructure to support the development of an area as a whole, rather than to make individual planning applications acceptable in planning terms – that is the purpose of planning obligations.  

Planning obligations are therefore restricted to a specific development proposal, whereas CIL funding can be used more widely.  

Local authorities can choose to use funding from both planning obligations and CIL to fund the same infrastructure. For example, a local authority may decide to use planning obligations to pay for a new public open space to serve a new community arising from a housing development. In addition, they also have the option of using CIL funds to help deliver the new open space if they wish to.