New rules for agreeing pre-commencement conditions prior to grant of permission: silver bullet or more delays?
In a move designed to reduce delays to commencement of development, from 1 October 2018 planning permission for the development of land in England cannot be granted or modified subject to pre-commencement conditions without the written agreement of the applicant.
The Government’s intention is that this will reduce the time lag between planning permission being granted and work starting on-site. However, while this will give developers an opportunity to negotiate the draft permission, it also means that potentially protracted discussion and negotiation may be necessary before permission can be granted.
The Neighbourhood Planning Act 2017
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 effect of this is that from 1 October 2018, the way in which pre-commencement conditions work will change. Local Planning Authorities (LPAs) must obtain the written agreement of the applicant before imposing pre-commencement conditions on a planning permission. In addition, the LPA must notify the applicant in writing of its intention to impose a pre-commencement condition.
If the LPA gives notice in writing to the applicant and the applicant does not respond to the notice before the end of the period of 10 working days (beginning with the day after the date on which the notice is given) then it may proceed to impose the pre-commencement condition, unless a time extension is agreed. If the applicant does not agree to the proposed pre-commencement condition, the LPA could amend it, remove it, or make it a post commencement condition. If none of these options would make the development acceptable, planning permission would be refused.
In principle, ensuring LPAs engage with applicants prior to applying conditions is a good thing. When acting for clients we always seek proactive discussions on the proposed wording of conditions, as using a range of trigger points can help ensure clients can get on site sooner. The Regulations will mean that this happens in a more formal way.
However, by having a more formal process this adds to the administrative burden on LPAs who are already suffering from budget cuts. This could result in unnecessary time delays, especially when trying to meet a specific planning committee report deadline. Applicants will therefore need to carefully consider whether it is tactically advisable to accept conditions or risk potential delays or even refusal.
Applicant’s will also continue to have the ability to seek to vary conditions (under Section 73 of the Town and Country Planning Act 1990) or appeal conditions if they are unacceptable. These options remain available where the applicant has agreed a pre-commencement condition, or the pre-commencement condition has been imposed where the applicant has not responded within the time limit set out in a notice served under the Town and Country Planning (Pre-commencement Conditions) Regulations 2018.
It is hoped that LPAs will continue to discuss proposed conditions with applicants throughout determination, with any minor amendments to the proposed wording agreed swiftly via email rather than by formal notice, otherwise the notification process will simply slow down decision making.
One aspect of decision making that isn’t considered by legislation is the addition of conditions by Councillors during planning committee. LPAs will therefore need to ensure Councillor’s understand the new rules and Officer’s will need to ensure they have delegated powers to agree any additional conditions with the applicant. It is likely that October and November committees may be slightly confusing before everyone gets the hang of the new rules!