Appealing a condition attached to a prior approval

A prior approval is still a grant, and conditions on prior approval appeal routes work the same way as conditions on any other permission. If a council grants prior approval for a Class MA conversion or a Class Q barn and attaches a condition you cannot live with, you can appeal that condition under section 78 of the Town and Country Planning Act 1990. What you cannot do is use section 73 to vary it, because section 73 bites on conditions imposed by the authority on a permission it granted, and a prior approval is permission given by the development order.

That leaves the appeal as the main remedy, and appealing carries a risk most landlords are not told about.

Conditions the authority may impose

The procedure for prior approval applications under Part 3 of Schedule 2 to the General Permitted Development Order 2015 sits in paragraph W. It allows the authority to grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.

Those last eight words are the whole test. The subject matter of a prior approval is defined by the class, and it is narrow. For Class MA, the matters the authority may consider include transport and highways impacts, contamination risk, flooding risk, noise from commercial premises, the provision of adequate natural light in all habitable rooms, and in specified areas the effect of the loss of the ground floor use. For Class Q, the matters are transport and highways, noise, contamination, flooding, the location or siting being impractical or undesirable, and the design or external appearance of the building.

A condition that attaches to something outside that list is vulnerable. A Class MA approval conditioned on the external appearance of the shopfront, or on a landscaping scheme, is addressing a matter the authority was not permitted to consider. That is the strongest ground of appeal there is.

Conditions outside the prescribed matters

The six tests in the Planning Practice Guidance on the use of planning conditions still apply. A condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects.

Read alongside paragraph W, that produces a short list of conditions worth challenging.

• Conditions on matters the class does not list, such as external materials on a Class MA conversion
• Conditions requiring something the class already prohibits or permits, which fail the necessity test
• Conditions tying occupation to a category of person where the class contains no such restriction
• Conditions requiring approval of details that the prior approval process has already dealt with
• Conditions so imprecise that nobody could say whether they had been complied with

Conditions that merely restate a limitation in the class are usually harmless, if unnecessary. The ones to watch are conditions that are narrower than the class. A condition fixing the number of dwellings below the number the class permits, or restricting the completion period more tightly than the class does, removes rights you had.

How the appeal works, and the risk in it

The appeal is a section 78 appeal and goes to the Planning Inspectorate. Deadlines are the usual ones, so check the date on the decision notice and work back from it rather than relying on a general six-month assumption.

And here is the part that catches people. Section 79 of the 1990 Act allows the appeal to be dealt with as if the application had been made in the first instance. The inspector is not limited to deleting the condition you dislike. They can redetermine the whole thing, and that includes refusing the prior approval you already hold.

That risk is real where the approval was marginal. If the officer's report shows the authority was close to refusing on noise or on natural light and imposed a condition to make the scheme acceptable, removing the condition may remove the reason the approval was granted. Read the officer's report before you appeal, not after.

Where the authority has refused outright rather than conditioned, the analysis is different, and our note on appealing a prior approval refusal under Class MA deals with that route.

Evidence that a condition is unnecessary

Appeals against conditions are won on documents rather than argument.

Start with the officer's report, which tells you why the condition was imposed and whether anyone thought about the six tests. Then get the consultee responses. A condition requiring a noise mitigation scheme, imposed because environmental health asked for one, is much harder to shift than a condition the officer added from a template.

Where the condition addresses a technical matter, answer it with technical evidence rather than with policy. A condition requiring a noise insulation scheme can often be discharged by a short assessment showing that internal levels already comply, and discharging it is faster than appealing it. A condition about contamination can frequently be answered by the Phase 1 report the authority should have read.

Appeal decisions on comparable conditions are useful, and our guide on using appeal decisions in a planning application sets out how to deploy them without overstating what they prove. They are indicative of how inspectors have approached the issue rather than binding precedent.

Conditions that reproduce the class limitations

Classes carry their own built-in limits and conditions, and they bind you whether or not the decision notice repeats them.

Class MA requires the building to have been in a qualifying commercial use for a continuous period, to have been vacant for a period before the application, and the development to be completed within three years of the prior approval date. Class Q restricts the number and size of dwellings and limits the building works to those reasonably necessary for conversion.

Those limits are the real constraints on your programme, and they are often tighter than anything the council adds. A three-year completion clock is the one that bites, because an appeal against a condition can absorb a good part of it while the clock keeps running. Our note on Class MA vacancy and continuous use conditions goes through the qualifying periods in detail.

Effect on implementation

A prior approval with a condition precedent cannot be implemented until the condition is discharged. Starting work before discharging a condition precedent puts you in breach, and in some circumstances means the development is not lawfully begun at all.

So before you decide between appeal and compliance, work out which conditions are precedent, what each requires, and how long the authority takes to discharge them. Submit the discharge applications in parallel with any appeal, because an appeal does not suspend the condition and does not stop the completion clock.

Keep the paperwork tidy. A buyer's solicitor will ask for evidence that every condition was discharged before the works began, and a missing discharge decision is a conveyancing problem years later.

Where compliance is simpler than appeal

Most of the time it is. An appeal takes months, costs professional fees, risks the approval itself and does nothing to advance the works.

Appeal where the condition makes the scheme undeliverable, where it addresses a matter the class does not permit the authority to consider, or where it is so imprecise that you cannot comply even if you want to. Comply where the condition is a technical scheme you can satisfy with a short report, or where the cost of compliance is less than the cost of the appeal and the delay.

A middle route is worth trying first. Write to the case officer setting out why the condition fails the six tests, and ask them to confirm in writing that a particular discharge submission would satisfy it. Authorities will often narrow a condition's practical effect without anyone appealing anything.

You can draft the planning statement that supports either route on PlanScope, starting from the Planning Statement page, with the policy framing and the condition analysis structured for you. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.