Pre-commencement conditions requiring the applicant's approval
The long awaited effect of Regulations that will require Local Planning Authorities (LPAs) to obtain the written agreement of applicants before imposing pre-commencement conditions on planning permissions will soon be known and will be interesting to watch in practice. Many have questioned whether it will be the end of many pre-commencement conditions, the beginning of more appeals or result in limited change in practice.
The Town and Country Planning (Pre-commencement Conditions) Regulations come into force on 1 October 2018 predominantly unchanged as a result of the consultation in February 2018.
Planning conditions operate to ensure development proposals are acceptable and proceed where planning permissions may otherwise have been refused. Certain planning conditions must be discharged by developers before works can commence on site, also known as pre-commencement conditions. If these conditions are not met, development is delayed and works cannot start, driving proposals to a halt until developers can discharge the requirements of the pre-commencement conditions.
Delays may be for a number of reasons including too many pre-commencement conditions, burdensome requirements of various authorities when discharging conditions (not just the LPA), technical and survey difficulties or under resourced LPAs. Undoubtedly, the number of pre commencement conditions on planning permissions has significantly increased over the years. The Government has recognised that the unnecessary over-use of pre-commencement conditions is a barrier to development being started and carried out more quickly, and the achievement of the Government policy objective to substantially increase the construction of houses to 300,000 homes per year to address the severe housing supply and affordability problem.
It is already common practice for LPAs and applicants to discuss draft planning conditions that will be required to make the proposal acceptable in planning terms before a decision is made on whether to grant planning permission. The new Regulations seek to facilitate this discussion at the earliest opportunity with the aim of requiring the applicant's approval of each pre-commencement condition beforehand to hopefully significantly reduce the number of pre commencement conditions on planning permissions to only those that are really necessary, allowing development to start more quickly and hopefully assisting to boost the supply of housing.
How does it work?
If an applicant, once notified by the Council under the Regulations of the pre-commencement condition proposed, confirms their agreement to such a condition in writing, the pre-commencement condition can be imposed. If, however, an applicant indicates they will not agree to the pre-commencement condition, then according to the Regulations it cannot form part of the grant of planning permission and the permission must either be approved without the condition being a pre-commencement one, or refused if the condition with pre commencement restrictions or requirements is considered necessary by the LPA to make the proposal acceptable in planning terms.
If the applicant fails to provide a 'substantive response' by the date specified in the notice, being 10 working days after the notice is given, then the LPA may under the Regulations grant planning permission subject to the pre-commencement condition, without the agreement of the applicant. A 'substantive response' is one where the applicant states that it does not agree with the proposed pre-commencement condition or provides comments on it.
An application may be determined before the period outlined in the notice has expired if written agreement can be reached between the LPA and the applicant.
The procedure appears to be a useful planning tool that will give applicants some ability to negotiate with the LPA over pre-commencement conditions to kick-start development more quickly and remove the unnecessary hurdles they must jump through before development can commence. It will not reduce the overall burdens because any necessary approvals and details will still need to be addressed, but it should hopefully mean that they can agree with the LPA, where appropriate, for approvals and details to be signed off later in the development process whilst the works are underway.
In responding to the LPAs pre-commencement conditions, it would make sense for applicants to set out any proposed alternatively worded conditions, together with the reasons for doing so and demonstrating that this would be acceptable in planning terms and not lead to significant adverse impacts.
If a LPA is difficult and demands to retain all pre-commencement conditions, we suspect applicants are likely to ultimately agree, as the cost and risks of pursuing the issue at appeal would be greater than simply complying with the LPAs requirements prior to commencement of the development. There is a clear risk, therefore, that the new Regulations may make little difference in dealing with planning conditions with some LPAs. In our view, a surge of appeals on the issue is unlikely.
The approach in the Regulations also does not apply to S106 planning obligations. Although against guidance in the PPG, a difficult LPA might potentially resort to imposing a contested pre-commencement restriction or requirement that it wishes to demand in a S106 obligation leading to further disagreement between applicants and LPAs. We do not envisage this is likely to arise much in practice. The new dispute mechanism provisions for S106 obligations proposed in 2015 are still not yet in force, which could be a useful mechanism to address such issues in practice.
Originally published 5th October 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.