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Stephen Stephens
5 years ago
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1 Subject: Director/Head of Service: Decision Issues: Notice of Motion Requirement for planning permission to require sprinkler systems to be incorporated into all schemes for multistorey timber framed buildings. Assistant Director Planning and Regeneration These matters are within the authority of the Committee Classification: This report is open to the public. CCC Ward(s): Summary: To Resolve: ALL The notice of motion Following the major fire at the Tannery, this Council will, in future, make it a condition for the granting planning permission for the building of multi-storey timber framed buildings that sprinkler systems are installed, was referred by Full Council to the Planning Committee for further consideration. That the council cannot require such a condition to be reasonably imposed as a requirement of planning permission. SUPPORTING INFORMATION 1. Introduction The notice of motion set out below was proposed by Councillor Dixey and seconded by Councillor Eden-Green to the Full Council meeting held on 1 st October Detail Following the major fire at the Tannery, this Council will, in future, make it a condition for the granting planning permission for the building of multi-storey timber framed buildings that sprinkler systems are installed. The Council referred the matter without debate to the Planning Committee for a report by officers. Set out below is a review of national guidance of relevance to the consideration the imposition of conditions with planning permission. This guidance clearly identifies the tests required for the imposition of conditions, when these can be reasonably imposed and when they would be regarded as ultra vires. OVERVIEW OF THE LEGISLATION GOVERNING THE CONSTRUCTION OF BUILDINGS

2 The construction of buildings and fire safety are addressed through Part A Structure and Part B Fire Safety of the Building Regulations All new development has to comply with the Building Regulations and would be deemed acceptable in this respect if it accords with these statutory requirements. There is currently no requirement in the Building Regulations to require sprinkler systems to be incorporated into residential development even if it is constructed using a timber frame. Clearly there is a significant benefit in terms of safety to have a sprinkler system installed within any building particularly those constructed using the timber frame process as witnessed by the recent fire at the Tannery. However the grounds for insisting on inclusion of such a system is a matter for the Building Regulations as these provide the specific legislative framework that underpins the construction and fire safety of a building. If a building can be constructed without the need for a sprinkler system under this legislation then there is no justification for requiring this through a condition attached to a planning permission. In order to be legitimately pursed the matter would need to be made a formal requirement of the Building Regulations which are set nationally by the Government. OVERVIEW OF GUIDANCE FOR THE IMPOSITION OF CONDITIONS At the stage of the consideration of the planning application it is not always known how the building will be constructed. The method of construction would not normally impact on the overall character and appearance of the building, externally a building can be constructed to look the same whether it be constructed using a timber frame, traditional masonry or steel frame construction. The restriction of the erection of a building using a particular type of construction process would be difficult to justify in planning terms, unless there are clear planning grounds to justify the approach, it would be regarded as an onerous restriction to impose on the developer. To understand this further it is necessary to review the legislative justification and purpose for imposing conditions on planning applications. The legislative power to impose conditions with planning permission are set out within Sections 70, 72, 73, 73A and Schedule 5 of the Town and Country Planning Act Paragraph 203 of the national Planning Framework states Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions Paragraph 206 of the National Planning Framework states, Planning conditions should only be imposed where they are: 1. necessary; 2. relevant to planning and; 3. to the development to be permitted; 4. enforceable; 5. precise and; 6. reasonable in all other respects.

3 The policy requirement above is referred to in this guidance as the six tests. The National Planning Policy Guidance provides the current guidance for the interpretation of the six tests. The six tests must all be satisfied each time a decision to grant planning permission subject to conditions is made. The tests are set out below, alongside key considerations: TEST KEY QUESTIONS Necessary Will it be appropriate to refuse planning permission without the requirements imposed by the condition? A condition must not be imposed unless there is a definite planning reason for it, ie it is needed to make the development acceptable in planning terms. If a condition is wider in scope than is necessary to achieve the desired objective it will fail the test of necessity. Relevant planning to Does the condition relate to planning objectives and is it within the scope of the permission to which it is to be attached? A condition must not be used to control matters that are subject to specific control elsewhere in planning legislation (for example, advertisement control, listed building consents, or tree preservation). Specific controls outside planning legislation may provide an alternative means of managing certain matters (for example, works on public highways often require highways consent). Relevant to the development to be permitted Does the condition fairly and reasonably relate to the development to be permitted? It is not sufficient that a condition is related to planning objectives: it must also be justified by the nature or impact of the development permitted. A condition cannot be imposed in order to remedy a pre-

4 existing problem or issue not created by the proposed development. Enforceable Would it be practicably possible to enforce the condition? Unenforceable conditions include those for which it would, in practice, be impossible to detect a contravention or remedy any breach of the condition, or those concerned with matters over which the applicant has no control. Precise Is the condition written in a way that makes it clear to the applicant and others what must be done to comply with it? Poorly worded conditions are those that do not clearly state what is required and when must not be used. Reasonable in all other respects Is the condition reasonable? Conditions which place unjustifiable and disproportionate burdens on an applicant will fail the test of reasonableness. Unreasonable conditions cannot be used to make development that is unacceptable in planning terms acceptable. In considering the six tests relative to the imposition of a condition to impose a sprinkler system within a timber frame construction building, it is considered that such a condition would not be necessary, relevant to planning, nor relevant to the development to be permitted. Assessing each of these tests in turn; NECESSARY; if the development would be acceptable without the condition the condition would have to be regarded as unnecessary. In this instance the condition as suggested would be imposed not with regard to the specific acceptability of the

5 proposal in planning terms but due to achieve wider, and undoubtedly nobler aims, this would not make the condition necessary. It therefore fails this test. RELEVANT TO PLANNING; the condition is seeking to impose restrictions that are addressed through other primary legislation, in this instance the Building Regulations, conditions should not be used to address matters covered by other legislation and therefore fail the test. That the Building Regulations does not automatically require a sprinkler system to be provided in a large scale residential timber frame building does not allow this to be imposed as a requirement through the planning permission. RELEVANT TO THE DEVELOPMENT PERMITTED; as set out in the guidance to the six tests a condition cannot be used to remedy a pre-existing problem or issue not created by the proposed development. If there are substantive issues relating to the need to incorporate sprinkler systems into buildings constructed using the timber frame process, it is for the primary legislation to address this, it cannot be dealt by restricting what would otherwise be an acceptable development in planning terms. 3. Relevant Council Policy Documents Canterbury District Local Plan Publication Draft June Consultation planned or undertaken None. 5. Options available with reasons for suitability Although the intention to make it a condition for the granting of planning permission for the building of multi-storey timber framed buildings that sprinkler systems are installed would have clear benefits in terms of the safety of the future occupiers of such buildings, the imposition of such conditions cannot be reasonably be imposed through the Planning permission. Such a condition would be beyond the scope of planning control. For this reason regrettably it is not appropriate to pursue this approach further. However it would be possible to highlight the matter to developers by including a note on any permission highlighting the benefit to the safety of residents by installing sprinkler systems should they be considering using timber frame construction. It would also be an option for the council to lobby the government to tighten the Building Regulations legislation in this respect. 6. Reasons for supporting option recommended, with risk assessment The matter of the construction of buildings is addressed through Building Regulations legislation rather than the Planning system. It is not the purpose of planning conditions to address matters that are dealt with through other legislation. If the council were to impose such a condition it would be fail to meet the statutory tests of being neither, necessary nor relevant. Therefore if the council were to impose a condition that failed to meet the statutory tests the applicant would be able to appeal against its imposition and would reasonably expect an Inspector to allow such an appeal. The means of construction of the building would not be an issue for consideration at the planning application stage so long as the external appearance of the approved building can be achieved.

6 7. Implications (a) (b) Financial Implications Potential for an award of costs at appeal. Legal Implications - Pursuing a stance that fails to address the relevant planning considerations raises the risk of challenge of a decision through the courts where the council would be expected to meet its costs and the costs of the other parties if it has been found to have acted unreasonably. Other implications (c) Planning/Building Regulations - The planning issues are set out in the report. 8. Conclusions That the resolution cannot be supported as the imposition of such conditions would not meet the statutory tests for the lawful imposition of planning conditions. Contact Officer: Steve Davies Telephone:

Planning Neighbour Consultation Policy

Planning Neighbour Consultation Policy The Council believes that local people have a key role to play in shaping the quality of their environment, and is committed to involving the community in planning decisions. This guidance note specifically