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“To Condition or Not to Condition” – Planning

January 13, 2013 by  

By Christine Mason

The Path Most Traveled

Planning is probably the one issue that is always most controversial and creates strong opposing opinions and yet one of the most Government regulated areas of Rochford District Council’s powers and responsibilities.

Planning Applications are determined within an accepted and published set of procedures. Most of these decisions are delegated to the Council’s experienced Planning Officers but some are referred to the Council’s Development Committee for decision.  Once a PlanningApplication is Approved it usually has a series of conditions attached to it, some of which are pre-conditions which are required to be signed off and agreed by the Council’s Officers before any building commences.

However there is nothing to prevent a developer commencing building works even when there are outstanding conditions to discharge. It is always disappointing when this is the case, but any developer progressing a scheme in this way does so at their own risk and the remedy of such a breach is subject to the laws of planning enforcement of the Condition by the Council.

On larger developments, formal legal agreements are often referred to as S106 agreements which detail any contribution required by a developer towards the infrastructure and other community costs that the development may create and deliver e.g. costs towards schools, road and junction improvements and even bus services.  Otherwise Conditions can be anything from a simple ‘sight splay’ preventing high planting and fencing to ensure safe visibility for traffic to the details of design and materials and working practices.  Needless to say all Conditions are important is as the act of ensuring that they are carried out.

It has been reported in the National Press hat some Council’s fail to ‘collect’ the agreed financial contributions under Section 106 Agreements in the time frame reported and therefore lose the community benefit that had been negotiated.  RDC keeps a very close watch on these.

Other more usual Conditions that are equally as important as the financial ones are those that seek to prevent an unreasonable impact on neighbours whilst the development is in progress. These often detail times of work, storage of materials and parking arrangements.

Not very exciting but if flouted can have a disproportionately negative effect on the locality.

One of these that I have received most complaints about in my short time on the Council are those regarding parking of operatives vehicles whilst construction is in progress.  Mostly these are pre-conditions which are required to be signed off by the Council before any building commences.  The agreement to be met between the Council and the Developer usually states that the storage of material and parking arrangements should be agreed prior to commencement of the building works.

Unfortunately the Officers have to rely on the developer contacting them as they do not have the time to check on when a development starts and to a great extent there is a large element of trust placed onto the builder’s integrity.  This sometimes works but when it does not the disruption to the neighbouring properties, pedestrians when vehicles are parked on the footway and possibly to the traffic flows on the more main through roads is unacceptable.

At the moment Rochford has just under 500 enforcement cases outstanding. There are delays in proceeding these because of sheer numbers versus the resource of available Enforcement Officers!

Once the Council is aware that planning conditions are breached it can take enforcement procedures.  Unfortunately this can take months to pursue, especially if there is a back log and by the time these procedures are enacted the situation is past and there is no redress on the builder for failure to comply but the Council has often still incurred costs, and ultimately the Council Tax payers foot the bill!

Damage to the footway is a charge to Essex County Council unless watchful Councillors and residents inform ECC so that it can recover costs from the developer, if not again it is the Council Tax payers who foot the bill.

So whilst we can inform the Council of a pre-condition breach that is causing residents problems it may be that nothing is actually done in practice.  So what was the point of all the effort in making such a pre-condition?

None.  The proposal for storage of material and parking arrangements should be examined carefully before planning permission is given and if satisfactory arrangements are not possible then planning permission should be Refused.

Alternatively perhaps Government should find a way of giving Council’s Planning Authorities the power to invoke punitive fines when such breaches occur to ensure compliance?

I see no point in having a situation where the remedy for failure to comply is for further costs to be placed onto the victim (the Council and the Council Tax Payer) and the offender receives no penalty for ignoring an agreement that is made in the public interest.

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