UK: Before You Begin: Pre-Commencement Planning Conditions

Last Updated: 27 February 2018
Article by Romola Parish

Pre-commencement conditions are powerful things: unless they are satisfied, then any works done to implement a planning consent will not count, and the consent will not have been properly implemented. If this occurs near to the expiry date, there is a risk that the consent will expire without having been implemented, and any works done on site deemed to be unlawful.

The Government is currently consulting on proposals to improve the use of planning conditions by clarifying when a pre-commencement planning condition can be imposed without the written agreement of the applicant.

OLD AND NEW CONSULTATIONS

The government has been cogitating over 'improving the use of planning conditions' for the last couple of years. In its response to the September 2016 consultation, it proposed requiring local planning authorities ("LPAs") to seek the agreement of the developer to any pre-commencement conditions. In doing so, it sought to 'place best practice on a statutory footing' in order to save time by not having to discharge any pre-commencement conditions before development could commence.

Following that consultation, the Neighbourhood Planning Act 2017 introduced section 100ZA into the Town and Country Planning Act 1990 ("TCPA"). When brought into force, sections 100ZA(4) (5) and (6) of the TCPA will prohibit the grant of planning permission subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition except in prescribed circumstances. The Government issued a new consultation paper on 30 January 2018 seeking views on draft regulations which set out the circumstances when a pre-commencement condition can be imposed without the written agreement of the applicant.

Essentially, this would only be possible where no 'substantive response' (i.e. written comments or objection) is given by a developer within 10 working days of a notice from the LPA setting out the terms of a proposed pre-commencement condition. An application cannot be determined before the 10 working day period has passed, unless agreement is given or a substantive response received by the LPA. The notices relating to the proposed conditions must specify reasons for imposing them, including why such a condition must be a pre-commencement condition.

WHAT COULD THIS MEAN FOR DEVELOPERS?

It is hard to see how this will streamline the granting of planning consents, although it may reduce the number of pre-commencement conditions. Whilst the 10 working day period would require prompt action from the developer, if there is a late proposal by the LPA of such a condition, it may mean that the application has to be carried over to a later committee date, which could be an issue for developers.

Clearly, well-advised developers will simply fail to agree to any onerous Grampian-type conditions. What happens then? The LPA could refuse consent on the grounds that, in their view, consent cannot be granted without such a condition, leaving the developer to appeal the refusal. Alternatively, the LPA could grant the consent subject to such condition, leaving the developer to appeal against the condition, apply under section 73 of the TCPA to vary the condition, or apply for a new consent altogether. There is nothing new here.

A commonsense approach to deal with many pre-conditions which do not 'go to the heart' of a development would be to allow the LPA to agree an alternative timescale if the condition proves genuinely tricky to satisfy before development is ready to begin. Courts can already decide whether a pre-commencement condition which has not been satisfied prevents a consent from having been implemented. They distinguish between, on the one hand, those pre-commencement conditions that are fundamental to the development and must be satisfied and, on the other, others with are 'nice-to-have' but not critical.

Many conditions in the latter category could incorporate a qualification to allow the LPA to consent to an alternative timescale for delivery, which would remove the need for a s.73 application to vary it. For example, a pre-commencement condition to supply details of surface finishes could be qualified to allow them to be supplied before any above-ground works are commenced. Clearly, what works in each case will depend upon specific circumstances.

Conditions which are fundamental to the development are a more problematic category. These are the ones that the new proposals might best seek to address and for which this negotiated agreement should be sought. It is exactly these which a developer will resist, as they are the ones most likely to hold up the works, cost money or require complex negotiations with other landowners or developers. It is these conditions which, if not agreed, will end up in court, subject to appeal.

However, the proposals might encourage developers and LPAs to try to think round such a condition before it is imposed, which might take time prior to determination of the application, but could save time later on when the condition provides a stumbling block to the carrying out of the development. The proposed new regime would also alert developers or planning consultants to the imposition of tough conditions by a demanding LPA,  and require reasons for them to be given up-front and in good time, rather than at the last minute before the committee considers the application.

There is a possibility that what would currently 'qualify' as a proper planning condition might be 'converted' into a section 106 obligations. The tests for each are different:

  • Planning conditions must satisfy the 6 tests set out in the NPPF ie they must be necessary, relevant to planning and to the development permitted, enforceable, precise and reasonable in all other respects.
  • The test for a section 106 obligation is that it must be necessary to make the development acceptable in planning terms, directly related to the development, and fair and reasonable in scale and kind.

Creative reading of these tests could mean that pre-commencement obligations could be used as a means of imposing such requirements under the radar. Developers should be vigilant and remember that incorrect use of either planning conditions or section 106 obligations could render a planning decision susceptible to challenge by appeal or Judicial Review. It would also potentially mean that more obligations need to be discharged at a very early stage in the development process.

RESPONDING TO THE CONSULTATION

The new consultation contains the draft Regulations. It allows general observations to be made but the questions focus on:

  • whether the LPA should be required to give full reasons for the conditions and why they should be pre-commencement conditions;
  • the scope of the 'substantive response' required of the developer; and
  • the 10 working day deadline by which a developer must respond to comment on or object to such conditions.

The consultation closes at 11.45 pm on 27 February 2018 and we will report on the outcome in due course. The Regulations are expected to be enacted in April 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions