More prosaically, when might planning conditions imposed by the Local Planning Authority conflict with highway maintenance obligations of the council acting as Highway Authority?
Dinner party chat (at least in the Walton & Co world) has moved down a notch as discussion turns quickly to the state of road maintenance in the UK.
It is no surprise that local councils prioritise social care benefits over highway maintenance. Given the parlous state of the nation’s roads, it is equally unsurprising that highway authorities look to extract maintenance works from developers as an obligation of a Section 278 agreement. For some recent clients, these costs have run into six figures!
Planning conditions requiring off-site works typically refer to a plan. Subsequently, this plan is then translated into a technical drawing for the purposes of the Section 278 agreement. It is at this point situations become more complex.
Arguments increasingly arise as to whether such “technical approvals ” go beyond the following:
(a) the tests in the CIL Regulations;
(b) works which are, in truth, already the duty of the highway authority to maintain under Section 41 of the Highways Act 1980 ; or
(c) the duty of the highway authority to enter into a Section 278 agreement at all as per the case of R v Warwickshire CC, ex parte Powergen.
The best place for a developer to fight this battle for such arguments is best engaged during the planning process itself. A detailed drawing should be thoroughly considered prior to the grant of planning permission, whilst the tests of necessity reasonableness and scale can still be brought to bear.
The alternative is to argue over technical layouts with the highway authority after planning permission has been granted. Both routes cause delay, but the former should provide more certainty. The latter provides the risk of the developer falling back into conflict with the local planning authority for failing to carry out the development in accordance with conditions, although a more general plan, may, in principle, offer a defence to any enforcement action or breach of condition notice.
For the Local Planning Authority or Highway Authority, the priority remains the same regardless: ensuring that such a condition is lawful, certain and thus enforceable.
Whichever side of the table you are sitting on, the detail of the highway drawing, or lack thereof, will be at the core of the argument.
By David Walton and Rukayya Kara