Conditions offered at appeal and the inspector's discretion
An inspector who wants to allow an appeal still needs wording to attach to the permission. Supplying it, agreed with the council where possible, is among the best value work on an appeal.
Offering a schedule of suggested conditions in a section 78 appeal costs half a day and is one of the few pieces of appeal work with a near guaranteed return. An inspector minded to allow the appeal still has to write the conditions, and a schedule that has been drafted properly, agreed with the council where possible, and tied to each reason for refusal gives them wording they can adopt.
The discipline is in the drafting rather than the volume. A schedule of 34 conditions copied from another permission will be cut, and the cutting exercise takes the inspector's attention away from your case.
Why offering conditions works
Section 70(1)(a) of the Town and Country Planning Act 1990 lets a decision maker grant permission subject to such conditions as they think fit, and the Planning Practice Guidance on the use of planning conditions sets out six tests. A condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects.
Every condition you offer should be traceable to one of those tests in a single sentence. That makes the schedule usable and it makes your witness look like someone who has done this before.
There is a second benefit. Drafting the conditions forces you to identify precisely what harm each reason for refusal alleges and what would neutralise it. Where you cannot write a condition that does the job, you have learned something important about the appeal before the inspector does.
Drafting a schedule the inspector can adopt
Format the schedule as the inspector would attach it, with numbered conditions and a reason under each.
- Group them. Time limit and approved drawings first, then pre-commencement items, then pre-occupation items, then conditions regulating the use in perpetuity.
- Mark pre-commencement conditions clearly, because section 100ZA of the 1990 Act and the Pre-commencement Conditions Regulations 2018 require the applicant's written agreement to a pre-commencement condition before it is imposed. Say in the schedule that you agree to the ones you have offered.
- Give each condition a reason that names the policy and the harm it addresses.
- Avoid conditions requiring approval of details that are already in the submitted drawings. Inspectors delete those.
- Keep the wording active and testable. A condition to "have regard to" something is unenforceable and will not survive.
Include the drawing numbers and revisions in the approved plans condition, and check them against the appeal documents on the day the schedule is served. A wrong revision number in an adopted condition creates a problem that takes a section 96A application to unpick.
Conditions that answer a refusal reason directly
Work reason by reason. Set out the reason, identify the harm alleged, and state the condition that answers it and why.
| Reason for refusal | Condition that may answer it |
|---|---|
| Overlooking of a neighbouring garden | Obscure glazing and fixed shut above a stated height, in named windows, retained in perpetuity |
| Inadequate parking or servicing | Provision and retention of a specified number of spaces before occupation, plus a servicing management plan |
| Loss of trees or damage during construction | Implementation in accordance with a tree protection plan and an arboricultural method statement |
| Harm from construction activity | A construction management plan approved before work starts, with hours and wheel washing |
| Drainage capacity | Surface water drainage details approved before work starts, with a restricted discharge rate |
| Unacceptable noise from plant | A rating level limit at a named facade, with a scheme to be approved and verified after installation |
Then be honest about what conditions cannot fix. A refusal based on the principle of development in the Green Belt, on the loss of a designated heritage asset, or on a scheme that is simply too large for its plot is not answered by a condition. Offering one in those circumstances signals that you have no substantive answer.
Where the refusal turns on amenity, the evidence has to come first and the condition second, and our note on neighbour amenity refusals covers what that evidence looks like. The same applies to highway safety refusals, where a condition without a technical assessment behind it rarely persuades.
Grampian conditions and third party land
A Grampian condition prevents development from starting, or from being occupied, until something happens on land the applicant does not control. It is the standard device for an off-site highway improvement, a sewer connection or an access visibility splay.
The courts have held that such a condition should not be imposed where there is no reasonable prospect of the required action being carried out within the lifetime of the permission. So the evidence has to address prospect as well as need. A letter from the highway authority confirming it is content in principle with a section 278 agreement, or correspondence from the water undertaker on a point of connection, is what turns a speculative condition into a viable one.
Draft it negatively and precisely. Name the works, name the land, name the mechanism, and state what evidence will satisfy the condition. A Grampian condition that says "until the highway works have been completed" without defining them is a condition nobody can discharge.
Where a condition cannot cure the harm
Two failure modes are worth naming.
The first is the condition that defers the unresolved issue. An inspector reading a condition requiring a drainage scheme to be approved later, on an appeal where the council's case is that the site cannot be drained at all, will see that the condition assumes away the dispute.
The second is the condition that rewrites the scheme. Conditions cannot be used to grant permission for something materially different from what was applied for. Where the only acceptable version of the scheme is smaller, that is a fresh application rather than a condition, and it may be worth considering whether withdrawing and resubmitting is the better route.
Agreeing wording with the council in advance
An agreed schedule carries far more weight than a unilateral one. Send your draft to the council's case officer as soon as the appeal is lodged and ask whether they will agree the wording without prejudice to their opposition to the appeal. Most will, because it saves them work.
Record the outcome in three categories: conditions agreed, conditions agreed subject to wording differences with both versions set out, and conditions not agreed with the reason. Inspectors find that format directly useful, and it removes the conditions session from the list of things that can overrun at an inquiry.
Where the appeal is by written representations, the schedule should go in with the statement. Where it is a hearing or inquiry, serve it with the proofs and bring a clean copy for the conditions discussion.
Presenting the schedule in the statement
Put the schedule in an appendix and refer to it in the body. In the body, deal with conditions where it helps the argument: under each main issue, state the harm alleged, the evidence that answers it, and the condition that secures the mitigation.
A Planning Statement prepared for the original application often already contains the raw material, because a well drafted application usually proposed mitigation that the council then ignored. Pull it forward rather than rewriting it. And if the refusal notice itself was vague, reading the refusal notice and turning it into a plan is the step that should come before any of this.
One closing caution on costs. Offering conditions late, on the morning of an inquiry, can cause an adjournment, and unreasonable behaviour that causes wasted expense can attract a costs award under the appeals guidance. Serve the schedule on time.
If you prepare appeal documents at volume, browse the 66 PlanScope report types to see where an AI-assisted first draft fits. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Should I submit suggested conditions with a planning appeal?
Yes, in almost every case. An inspector minded to allow the appeal still needs wording to attach to the permission, and a schedule drafted against the six tests in the Planning Practice Guidance gives them something to adopt. Drafting it also tells you whether each reason for refusal can actually be answered by a condition.
What are the six tests for a planning condition?
A condition must be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects. They are set out in the Planning Practice Guidance on the use of planning conditions. Give each condition you offer a reason that names the policy and the harm it addresses, so the test it satisfies is obvious.
Do pre-commencement conditions need my agreement at appeal?
Section 100ZA of the Town and Country Planning Act 1990 and the Pre-commencement Conditions Regulations 2018 require the applicant's written agreement before a pre-commencement condition is imposed. Where you are offering such conditions yourself, state clearly in the schedule that you agree to them, so the inspector is not left seeking confirmation.
When will an inspector refuse to use a Grampian condition?
Where there is no reasonable prospect of the required action on third party land being carried out within the lifetime of the permission. Evidence of prospect matters as much as evidence of need, so produce correspondence from the highway authority, the water undertaker or the landowner. Draft the condition negatively, naming the works, the land and the mechanism.
Can a condition cure a fundamental objection to a scheme?
No. Conditions cannot make an unacceptable principle acceptable, and they cannot grant permission for something materially different from what was applied for. Where the only acceptable version of the scheme is smaller or differently sited, that is a fresh application. Offering a condition in those circumstances suggests there is no substantive answer to the refusal.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.