Solicitor Kayleigh Chapman, in our leading Planning & Environmental law team, explains pre-commencement conditions in relation to a planning application and the subsequent granting of planning permission.
When a Local Planning Authority determines a planning application it can either refuse the application, grant planning permission unconditionally or grant planning permission subject to conditions. Conditions can relate to, among other things, the use of the development; construction hours and restrictions on permitted development rights.
In addition, certain conditions might be attached to a planning permission requiring something to be done prior to commencement of development. For example a condition might require details of materials to be submitted to and approved by the Council or for a landscape management plan to be similarly submitted and approved by the Council prior to commencement of development. These types of conditions are generally described as “pre-commencement” conditions.
Successive Governments have looked at ways to reduce the number of pre-commencement conditions imposed on planning permissions and ways to make the process quicker in getting such conditions discharged by Local Planning Authorities. Indeed only recently did Housing Secretary Robert Jenrick announce that the current Government is going to look into how pre-commencement conditions can be cut further in an effort to get the spade in the ground for developments at an earlier stage.
The Planning Practice Guidance advises that pre-commencement conditions should only be used where there is a clear justification for imposing one. The PPG states that such justification “is likely to mean that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would otherwise be necessary to refuse the whole permission”.
Section 100ZA(5) of the Town and Country Planning Act 1990 provides that “planning permission…may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition”. This Section does not apply in some circumstances such as on the grant of outline planning permission.
If planning permission is granted subject to a pre-commencement condition then an application must be made to the Local Planning Authority to discharge that condition prior to commencement of development. A developer would be advised to not to commence development until confirmation that the condition has been discharged as been received.
An application to discharge pre-commencement conditions (or indeed any other condition requiring further details to be approved by the Local Planning Authority) is subject to a fee which is currently £116.00 per application (£34.00 if condition relates to a householder planning permission).
The LPA has a period of 8 weeks for the majority of applications to give notice of its decision in respect of an application to discharge a condition(s). The PPG encourages Local Planning Authorities to respond to applications to discharge conditions “without delay”. That time may be exceeded and allowance needs to be made in the development programme before it is safe to commence.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.