Appeal costs where a condition is found unlawful

An unlawful condition appeal costs application is one of the few costs arguments that regularly succeeds against a local planning authority. The guidance on appeals lists the imposition of a condition that fails the tests for conditions as an example of unreasonable behaviour, and an appellant who had to appeal solely to remove a condition that was never necessary has incurred wasted expense by definition. That is the shape of the argument.

It is still underused, mostly because appellants focus on winning the appeal and treat costs as an afterthought. The deadline for the application comes before the decision, so an afterthought is too late.

The six tests and the legal tests behind them

National guidance on the use of planning conditions sets six tests. A condition must be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects.

Behind those sits the legal framework from the Newbury case: a condition must be imposed for a planning purpose and not for an ulterior one, must fairly and reasonably relate to the development permitted, and must not be so unreasonable that no reasonable authority could have imposed it. A condition failing any of those is ultra vires and void.

The distinction between the two sets matters for a costs application. The six tests are policy, and a condition breaching them is a ground for the inspector to remove it and for the costs argument. The Newbury tests are law, and a condition breaching them was never valid at all.

How a condition fails

In practice conditions fail in a small number of recognisable ways.

Necessity is the most common. A condition requiring approval of materials where the application already specified them and the authority approved them. A condition requiring a construction management plan on a single-storey rear extension. A condition restricting hours of use on a development that has no operational hours.

Precision comes next. "Landscaping shall be carried out to the satisfaction of the local planning authority" tells nobody what has to happen or when. "Details shall be agreed with the local planning authority" is unenforceable because agreement is not a measurable event. The correct form is submission, approval in writing, and implementation in accordance with the approved details.

Enforceability catches conditions requiring something outside the applicant's control, or something nobody could measure. A condition requiring a hedge to be maintained at 1.2 m in perpetuity by an unnamed party is hard to enforce. A condition requiring the removal of permitted development rights across land not within the application site is worse.

Relevance to the development catches conditions imposed to secure something the authority wanted anyway, such as a highway improvement bearing no relationship to the scheme, or a financial contribution dressed up as a condition.

And reasonableness catches conditions that make the permission unusable, for example a condition so restrictive that the development cannot proceed, which the guidance treats as effectively a refusal.

Appealing the condition rather than the permission

Section 78 of the Town and Country Planning Act 1990 allows an appeal against any condition attached to a grant of permission. That is the route when the permission itself is acceptable and one or two conditions are not.

Three things to know before you lodge it:

1. The inspector deals with the condition, and can delete it, vary it, or substitute different wording. They may also conclude that the development is only acceptable with the condition in place, in which case the appeal is dismissed and the condition stands.
2. The time limit is the ordinary appeal limit, six months from the decision, or 12 weeks for householder appeals. The clock runs from the date of the decision notice, not from the date you noticed the problem.
3. You can implement the permission while appealing the condition, but you must comply with the condition in the meantime, including any pre-commencement condition.

Where a committee imposed the condition against officer advice, the costs position is stronger still, because the authority's own professional view is on the file. We look at that pattern in committee refusals against officer advice and appeal prospects.

Costs arguments built on condition drafting

The costs regime at appeal rests on two limbs. The other party behaved unreasonably, and that behaviour caused you to incur expense that would otherwise have been unnecessary.

For a condition appeal, set the application out in that order:

• Identify the condition and quote it in full.
• State which of the six tests it fails and why, in one short paragraph per test.
• Show what you did to resolve it without appealing. The email to the case officer asking for the condition to be removed, the offer of alternative wording, the request to use the non-material amendment route. This is the part appellants skip, and it is the part that makes the application work.
• Show the authority's response, or the absence of one.
• State the expense. The appeal fee where applicable, the consultant's fees for preparing the statement, and the delay cost where it can be evidenced.

Make the application in writing before the inquiry or hearing closes, or by the deadline the Inspectorate sets in a written representations appeal. An application made after the decision is out of time, and inspectors do not entertain it.

Be proportionate. A costs application attached to a weak condition appeal looks aggressive and damages the main case. Where the condition is plainly defective and you tried to fix it cooperatively, it does the opposite.

Pre-commencement conditions and the consultation duty

Section 100ZA of the 1990 Act prevents an authority from imposing a pre-commencement condition without the applicant's written agreement, subject to a notice procedure set out in regulations made in 2018. The authority must give notice of the proposed condition, the reasons for it, and invite a substantive response within a prescribed period.

That procedure gives you a practical lever and a costs argument. If the authority imposed a pre-commencement condition without following it, the condition is vulnerable and the appeal was avoidable, which is the essence of unreasonable behaviour.

Use the notice period properly. Respond with alternative wording that converts the condition from pre-commencement to pre-occupation or pre-above-ground-works, which usually achieves the authority's objective without holding up the start on site. Authorities accept that more often than they refuse it, because the officer's concern is usually about outcome rather than timing.

Varying rather than appealing

An appeal is not always the right tool, and the alternatives are faster.

A section 96A non-material amendment can correct a drafting error, a wrong plan number or an obviously redundant condition. The fee is low and the turnaround short. There is no appeal if it is refused, which is its weakness.

A section 73 application to vary or remove a condition produces a new permission with its own conditions. It takes the ordinary determination period and carries a refusal right of appeal. Two cautions. The authority can revisit the conditions it reimposes, so you may get a longer list than you started with. And following the Finney decision, section 73 cannot be used to alter the description of development, so a variation that changes what was permitted will not work.

Where the condition is plainly void under the Newbury tests, judicial review is theoretically available but rarely proportionate, and the six week limit will usually have passed before anyone notices the problem.

The pragmatic order is: ask the case officer, offer wording, apply under section 96A if the change is non-material, apply under section 73 if it is material, and appeal under section 78 if the condition was never justified and you want a costs award.

Drafting conditions the authority will accept

Most of this is avoidable at application stage, and the least costly intervention is to offer your own conditions.

Submit a schedule of suggested conditions with the application. Reference the drawings by number and revision. Convert anything that would otherwise be pre-commencement into a pre-occupation or pre-above-ground trigger. Use "submitted to and approved in writing by" rather than "agreed with". Give each condition a reason that ties it to a development plan policy.

A planning statement that ends with a conditions schedule is read differently from one that does not. Officers under time pressure take suggested wording, and a condition you drafted is a condition you can live with.

Keep a note of what you offered and when. If the authority imposes something different and unnecessary anyway, that note becomes the evidence in your costs application. And appeal decisions on comparable conditions are useful material, as we set out in using appeal decisions in a planning application.

This is general guidance, not legal advice; costs applications are discretionary and fact specific, so take advice from a planning solicitor or an experienced agent before making one.

You can browse all 66 report types to see which supporting documents help discharge conditions quickly. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.