Author: Charlotte Dyer, Senior Associate, Planning, London

After months of hard work preparing a planning application and engaging in discussions with the local planning authority and other statutory bodies, planning permission has finally been granted.  The team members reach for the Champagne in celebration that work will finally be able to get underway on site, when a party pooper (often the lawyer) solemnly reminds everyone about the weeks or months of further hard work needed to discharge pre-commencement conditions before the first spade can hit the ground.  For some projects, the lengthy delay caused in discharging pre-commencement conditions can result in hugely increased costs, meaning that the project falls at the first hurdle.

Now the government has stepped in to save the day by prohibiting the imposition of pre-commencement conditions on planning permission for development in England without the agreement of the applicant.  Why, you might ask, has no one ever thought of this before? 

This blog entry explains the changes, as currently proposed, and considers whether the government's proposed solution heralds the end of multiple pre-commencement conditions holding up the start of construction or whether the reality is likely to fall someway short of that.  

1. What is the current position on the imposition of planning conditions?   

2. What statutory changes have been proposed?   

3. Why is DCLG consulting on these changes?

4. How would these changes apply in practice?

5. Conclusions?

1. What is the current position on the imposition of planning conditions?  Currently, local planning authorities have a wide power to impose such conditions as they think fit.  This power must be interpreted in light of national policy, guidance and case law.  In particular, the National Planning Policy Framework provides that planning conditions should not be imposed unless they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.  However, local planning authorities are given a fairly broad discretion when determining whether or not a condition satisfies that criteria.  An applicant that is aggrieved by the imposition of a condition may appeal to the Secretary of State, but that is a very costly and time-consuming process – see my other blog entry on that!

2. What statutory changes have been proposed? On 7 September 2016, the Neighbourhood Planning Bill had its first reading in the House of Commons.  Clause 7 of the Bill would introduce a new power for the Secretary of State to make regulations to restrict the imposition of prescribed planning conditions upon the grant of planning permission.  In particular, that Clause expressly restricts the imposition of pre-commencement conditions without the applicant's agreement.  The Bill defines a 'pre-commencement condition' as a condition imposed on a grant of planning permission (other than a grant of outline permission, see below) which must be complied with before any operation or material change of use is begun. 

3. Why is DCLG consulting on these changes?  The Bill provides that before the Secretary of State can make regulations under Clause 7 he must consult on this.  On 7 September, DCLG launched an eight-week public consultation that is designed to run in parallel with the progress of the Bill.  The consultation explains that DCLG considers there to be two (I could have named a fair few more than two but DCLG settled on just the two) issues with the current system of imposition of planning conditions: (1) too many unnecessary conditions; and (2) the over-use of pre-commencement conditions.  This blog entry focuses on the latter, but I agree that the sheer number of conditions can also be hugely detrimental and in many instances absolutely unnecessary.

4. How would these changes apply in practice?  Whilst in theory the amendments are likely to be welcomed by developers, in practice there are some key concerns:

The need for agreement: The consultation confirms that if an applicant refuses to accept a pre-commencement condition which the local planning authority considers to be necessary, the authority can refuse planning permission.  DCLG explains that this maintains protections for matters such as heritage, the natural environment, green spaces and flooding.  However, where an applicant disagrees with the authority on whether a condition is necessary, the proposed changes would leave the applicant in no better position than it would have been in before, i.e. it would have to accept the condition or appeal.  In fact, tactically, many applicants would rather bank the permission then appeal for refusal to discharge a condition (or apply to vary that condition), to avoid an appeal on the merits of the entire application.

Not for outline:  The Bill expressly provides that the proposed restrictions on the imposition of pre-commencement conditions will not apply for outline planning permissions.  The consultation gives no explanation for why this is the case.  Presumably it is because development cannot begin pursuant to an outline planning permission until reserved matters approval has been granted and therefore the delay caused by a pre-commencement condition will be of less significance.  However, it is not clear what the position will be for permissions that are part outline and part detailed (i.e. hybrid).  Additionally, this overlooks the fact that the discharge of a pre-commencement condition, even for an outline permission, can take months, particularly where it is necessary to appeal against the refusal to discharge.  

5. Conclusions?  It is clear that something needs to be done to stop local planning authorities taking the default position established through years of precedents of imposing a huge number of pre-commencement conditions on developments where it is clearly unnecessary.  The government's proposed changes will certainly focus minds and give the parties a better opportunity pre-decision to discuss the appropriateness of conditions.  However, the current proposals need to be considered carefully to ensure that this does not become just another well-intentioned change to the planning process that in practice is of limited use.

For more information please contact:

Charlotte Dyer
Charlotte Dyer
Senior Associate, Planning, London
+44 20 7466 2275