Chapter 4 Planning
In some areas, much new cycling infrastructure is often funded by developers. It is rare that planning permission is sought primarily for active travel infrastructure; rather active travel infrastructure is delivered anciliary to a development. As such, this infrastructure is generally dealt with by planning conditions attached to a development.
To make a development acceptable in planning terms, development may be conditional on the developer complying with specific conditions. These can require the developer to construct, or fund, cycle and other infrastructure on land that belongs to the highway authority, to the developer, or less frequently, on third-party land.
For straightforward measures that are entirely on the applicant’s land, these can be dealt with by way of a planning condition. Where works are required by the applicant on the highway, then an agreement under s.278 of the Highways Act 1980 will be used.163 For more complicated conditions, such as the payment of money, transfer of land to the highway authority, or ongoing commitments are involved, an agreement under s.106 of the Town and Country Planning Act 1990 will be used.164
There are various legal limitations on what can be imposed by way of a condition. Conditions are imposed pursuant to ss. 70(1)(a) and 72(1) of the Town and Country Planning Act 1990.165 There are three general requirements. These are that the condition (1) must be imposed for a planning purpose; (2) it must rairly and reasonably relate to the development; and (3) it should not be ‘Wednesbury’ unreasonable.166
4.1 Highway
Where a cycle link can be delivered on land belonging to the highway authority, there is generally no issue with imposing, and complying with, a condition and s.278167 agreement requiring this. The highway authority will generally have been the body requesting this infrastructure and therefore will facilitate its delivery.
4.2 On Site
Likewise, where the land required for the cycle link belongs to the developer, it is obviously straightforward for the developer to comply with such a condition and correspondingly such conditions are common.
4.3 Off Site
Imposing conditions such as the construction of walking cycle paths on third-party land can be more problematic. Developers often argue that it is not lawful to impose conditions that relate to third-party land (and highway and planning authorities often accept this), but the position is more subtle than that. It is correct that permission will be invalid if a condition requires a developer to comply with conditions that they cannot abide by because they do not own the land.168 However, a so-called ‘Grampian’ condition that precludes a development preceeding until a pre-condition requiring changes to third-party land has been complied with will be lawful.169 There is no requirement in law or policy that there needs to be a reasonable prospect of the condition being complied with.170 As such, local authorities should be making greater use of Grampian conditions to require suitable active travel provision, rather than accepting developments with sub-standard infrastructure.
A linked practical issue arises where land required for a cycle link to make the development acceptable in planning terms lies in the hands of a third party. The third party may be more or less content to facilitate such cycling infrastructure, but even where they are content, they will be aware that the development might not proceed without their agreement. This can lead to third-party landowners effectively holding developers to ransom unless they pay over the odds for the required land. As a consequence, it is unlawful for a planning authority to impose a condition that the developer secure third-party land because the developer may not be able to comply with the condition and the development could then not proceed. Historically, this has led to either developments not proceeding or, more commonly, developments being allowed to proceed notwithstanding a lack of suitable cycling infrastructure.
However, there is a solution. This has tended to be used in the context of larger developments, but is equally applicable to smaller developments. The solution is for the highway authority and the developer to agree a compulsory purchase order (‘CPO’) indemnity agreement. Under this procedure, the developer agrees to indemnify the highway authority in its use of the compulsory purchase process if it decides to use its powers to secure the third party land needed to deliver the cycling link. This gives the developer and the third-party an incentive to negotiate on a rational basis: the developer to avoid the uncertainty and risk of the highway authority following the CPO procedure, and the third-party landowner to arrive at a reasonable value for the transfer aware that if they fail to reach agreement, the highway authority may nonetheless be able to secure the land at its market value. Generic precedents are available on both the Westlaw and Practical Law platforms, and
References
Town and Country Planning Act, ss. 70(1)(a) and 72(1).↩︎
Newbury DC v Secretary of State for the Environment [1981] AC 578 (HL).↩︎
Mouchell Superannuation Fund Trustees v Oxfordshire CC [1992] 1 PLR 97 (CA).↩︎
Grampian Regional Council v City of Aberdeen [1984] JPL 590.↩︎
David Elvin and Landmark Chambers Team, Encyclopedia of Planning Law and Practice (232nd edn, Sweet & Maxwell 2026).↩︎