How long do planning conditions last?

[daltontrees]

17 hours ago, Jon Heuch said:

There would be a few steps prior to a prosecution; firstly there would be enforcement action; the recipient could then appeal the enforcement action and PI in England would make their view known. However, on a practical level, a good tree surgeon would approach the council and ask if the trees were protected. A tree surgeon would need to see permission granted.

 

As for an appeal, add 12 months onto the process for a decision. So do you work with the council or tell the council that you know the law better than they do? Thus the problem.

I don't think there would be enforcement action. That;'s what I meant generally as 'prosecution'.

 

I am quite happy to tell Councils that they are flogging a dead horse. Some Councils get it wrong all the time. I have stood one of them down on this very issue. They gave in. I am not out to prove anything by this, just to serve clients well. If a Council is preventing one of my clients doing something lawfully with their own trees that are plunging their garden into darkness I will tell them and the Council that reliance on spent planning conditions is invalid. In this particular case the Council told me it used planning conditions because it couldn't afford to make TPOs for everything. This is clearly abuse of guidance and law. I told them where to go, and they went. They shouldn't get away with this sort of nonsense. I hope other tree owners in the area benefitted too. I have nothing against protection of trees but TPOs are the long-term correct mechanism. Conversely I am all for adequate resourcing of Councils.

 

No problem.

 

I'm not a tree surgeon any more. I don't need to see permission granted or application fees wasted. I just need to be able to advise clients of their rights and options. Covering my arse by insisting on needless permissions and delays isn't in my repertoire.

 

It's not posturing, the CURRENT government guidance says ""it is not reasonable to use conditions to secure the long term protection when TPOs can be used." I can't find another interpretation of that.

Edited May 10, 2021 by daltontrees

[Jon Heuch]

17 hours ago, daltontrees said:

... the CURRENT government guidance says ""it is not reasonable to use conditions to secure the long term protection when TPOs can be used." I can't find another interpretation of that.

It's fine to advise on the law if you are a lawyer and the practice of the law if you are an arboriculturist. But please don't advise on the law if you are not a lawyer. Yes, if a council imposed a condition whilst the current government guidance applies, you could appeal the condition. A lawyer will advise you (as they have advised my clients) that if you go ahead with the planning development without appealing the condition you are deemed to have accepted the condition. Don't come running back in 6 months or 6 years time & say you didn't agree with it or try to ignore it. Don't think  you can get out of it especially if it is a pre-commencement condition & you have started the development. If the condition is not reasonable or vague the appeal process should support your case.

 

But I was dealing with more historic conditions that were imposed prior to current government advice and which, I assume, were not appealed. Clearly a council may take a practical decision and not pursue a breach of an ancient condition but as a professional I don't think you are in the right. Your advice may work but don't fool yourself that it will work 100% of the time. It may not.

[daltontrees]

We'll have to disagree about this. I agree that not appealing conditions is acquiescence to the conditions. But not forever. Conditions that express no time limits or are not discharged by specific actions or deemed discharges do not necessarily go on forever. Conditions are generally to make sure certain things happen before development starts and certain other things don't happen during development. They're transient by purpose. They are implicitly enforceable for the duration of development unless otherwise stated.

 

The only people that know about them are the Council and the applicant. Unlike TPOs or CAs they aren't out there for all to see years or decades later or recorded with the title deeds. No-one is expected to research planning conditions when they buy a 20 year old house. You couldn't even if you tried. It would be ridiculous for a Council to expect old planning conditions to be effective in protecting trees, and for that reason it would be nonsense to expect prosecution or enforcement to succeed.

 

One doesn't need to be lawyer to know this or to tell clients that this is the way the world works. Besides, lawyers and plannign practitioners and the realistic sort of Council officers have been telling me this for decades. I'm not about to stand up in court and construct a proof, but some things are so obvious in the day-to-day conduct of business that lawyers aren't needed. Not 100%, but I know where the line is.

 

If I ever get round to having an authoritative book on planning law I'll give chapter and verse.  In the meantime Mynors has shaped and supports my practical approach.