Negotiated Pre-Commencement Conditions: Welcome news

The Neighbourhood Planning Act 2017

Pre-commencement planning conditions and the delays caused to project programmes have always plagued the UK planning system and its ability to encourage development. 

As stated by Ashfords LLP:

On 1 October 2018 the Neighbourhood Planning Act 2017 (Commencement No 5) Regulations 2018 will trigger section 14 of the Neighbourhood Planning Act 2017, specifically subsections 14(1), (3) and (4). This in turn will implement s100ZA (4) to (13) of the Town and Country Planning Act 1990.

The government has now confirmed decision makers cannot grant planning permission containing a pre-commencement condition unless the applicant has either agreed to the terms of the condition or hasn’t responded within ten working days.

This is a summary of how it would work procedurally for the applicant. 

The applicant receives notice from the LPA seeking to impose a pre-commencement condition. 

- They can provide a written agreement and the LPA may grant planning permission subject to that pre-commencement condition, or

- They can provide comments within the time limit, in which case that condition cannot be imposed, or 

- They can choose not to respond in which case the LPA may grant planning permission subject to that pre-commencement condition, or 

- They can indicate that they do not agree to the terms of the proposed condition, in which case the LPA may either:

i. grant planning permission without the pre-commencement condition,

ii. seek written agreement to an alternative pre-commencement condition, or

iii. refuse to grant permission (if it considers that the disputed pre-commencement condition is necessary to make the development acceptable in planning terms).

What options are available to an owner who does not wish to comply with a condition?

- They can apply for removal or discharge of some or all of the conditions to the LPA. However, whatever the outcome of this application, the original permission will continue to exist. In addition, the decision notice for the grant of planning permission should also repeat the relevant conditions from the original permission, unless they have already been discharged. The local planning authority has also the right to impose new conditions – provided the conditions do not materially alter the development that was subject to the original permission and are conditions which could have been imposed on the earlier planning permission.

- They can appeal the decision of the LPA to grant planning permission subject to conditions, to the Secretary of State within 12 weeks of the date on the decision notice for householder planning applications or 6 months for other planning decision types.

This is positive especially for the bigger schemes but from a legal point of view pre-commencement conditions may continue to be a headache for planners and developers. 

First, the use of the procedure seems to be ruled out for outline planning permissions as in Section 100ZA(8) Town and Country Planning Act 1990, introduced by section 14(1) of the Neighbourhood Planning Act 2017, ‘pre-commencement condition’ is defined as:

“a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with—

 (a) before any building or other operation comprised in the development is begun, or

 (b) where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.”

There are further issues:

What if an applicant resists a requested pre-commencement condition? It is to be hoped that a compromise will be found but, if not, ultimately the decision maker’s only option may be refusal of the application.

What if a decision maker fails to follow the procedure and issues a permission with an unwelcome pre-commencement condition? The applicant can challenge the permission but this will cost money and time. 

It is easy to see Local Planning Authorities struggle with the legislation and not adapting easily. Applicants not aware of this procedure may still accept pre-commencement conditions as a fait a complis. It is always worth speaking to your advisor to understand what options you have. 

The new legsilation will be come into force 1st October 2018. 


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