A negative obligation

21 Jul 2022

A planning obligation not to implement an extant planning permission has had a positive outcome for an appellant in Herefordshire (DCS Number 400-036-333). This is a case which demonstrates the usefulness of the planning obligation in the planning process.

Planning permission was in place for the subdivision of the appellant’s house to provide two dwellings. She subsequently applied to build a separate dwelling in the garden but this was refused outline permission, the council fearing that both permissions would be implemented. 

In response, the appellant submitted a unilateral undertaking that obliged the owner of the site not to commence or implement the extant permission and not to commence or implement any alternative development involving the subdivision of any dwelling on the site. The council argued, however, that the unilateral undertaking did not prevent future planning applications being submitted for the subdivision of the house once the extant permission had expired. 

The inspector acknowledged that this was the case but reasoned that any future subdivision of a dwelling on the site would require the removal or modification of the relevant obligation and an assessment as to whether the obligation no longer served a useful purpose. The inspector held that there was a clear and necessary purpose for the unilateral undertaking given that it ensured the proposal and the extant permission would not have a detrimental cumulative impact of additional open market dwellings at a location found contrary to the development plan.

The inspector determined that the obligations preventing both the implementation of the extant permission and the subdivision of dwellings on the land were material considerations of considerable weight in favour of the proposal, concluding that they justified a decision which was not in accordance with the development plan. 

Section 4.6152 of DCP Online concerns the use of planning obligations to secure the surrender of planning rights.