Silence is Consent: Developers must pay attention to draft pre-commencement conditions

Author: Charlotte Dyer, Senior Associate, Planning, London

Developers beware – if you don’t agree with a pre-commencement condition in draft, you could have to express your disagreement in writing within 10 working days, or risk the authority imposing it in a planning permission anyway.

The government is currently consulting on changing the procedure for imposing pre-commencement conditions in planning permissions, with regulations expected to be in force in April 2018.  After this date, developers must be proactive in deciding whether or not they agree with the terms of any proposed pre-commencement conditions. If they do not agree, they must respond within 10 working days of receipt of a notice from the authority indicating their disagreement or providing comments. In the absence of a response, the authority can proceed to grant permission with the pre-commencement condition.

This is intended to prevent unnecessary delays to decision-making. However, it will create an extra burden on developers, particularly those with multiple applications being considered in parallel or where the authority is seeking to impose a large number of pre-commencement conditions. Given the continued extensive use of pre-commencement conditions, this is likely to have far reaching impacts on developers across England. The consultation is open for responses until 27 February 2018.

Set out below is a quick recap of the current position and a brief explanation of the latest proposals.

1.Restriction on pre-commencement conditions

2. Exemption from the need to obtain written agreement

3. Commentary

1. Restriction on pre-commencement conditions

The Neighbourhood Planning Act 2017 introduced a restriction on the imposition of pre-commencement planning conditions for development in England without the prior written agreement of the applicant (see my previous blog post on this here). This applies to any condition imposed on planning permission (except outline permissions) that must be complied with before any operation or change of use can begin.

According to the latest government consultation, these changes were made in response to “developer concerns about unnecessary costs and delays to development caused by the inappropriate use of planning conditions“. Accelerating build out rates, particularly for new housing, is also a key priority for the government.

Whilst largely welcomed by developers, there has been concern about how effective the requirement for agreement will be in practice. In the absence of agreement, the condition cannot be imposed, but the local authority can just refuse permission if it considers that the disputed condition is necessary to make the development acceptable in planning terms. Developers cannot force the authority to grant permission without the condition, though it should bring the parties together at an earlier stage to discuss the draft conditions, allowing negotiations before a decision is made.

2. Exemption from the need to obtain written agreement

The requirement for agreement within the 2017 Act had a caveat, in that it would “not apply in such circumstances as may be prescribed“. The government is now seeking to prescribe what those circumstances will be.

The new draft regulations will require the local authority to serve a notice on the applicant setting out the terms of a proposed pre-commencement condition together with full reasons. Upon receipt of such a notice, the applicant must within 10 working days:

a) provide written agreement – the authority can then grant permission with the condition;

b) indicate that they do not agree – the authority can then grant permission without the condition, seek agreement for an alternative condition or refuse permission;

c) provide comments on the condition – the condition cannot then be imposed and further negotiations may follow; OR

d) not respond – the authority can, after the deadline, then grant permission with the condition.

3. Commentary

This new process has similarities with the deemed discharge of planning conditions regime, whereby a local authority’s failure to respond to an application for discharge of a specified condition results in the deemed discharge of that condition.

The consultation does not address the issue of any subsequent appeal, but it is possible that a developer who fails to respond to the authority’s notice may be at a significant disadvantage if it subsequently decides to appeal against the imposition of that condition.

As pre-commencement conditions are still very widely used, this is likely to have far reaching impacts on developers across England who will have to act proactively when the provisions come into force or risk having unacceptable conditions imposed which are then hard to challenge.

If you would like to discuss the implications of the government’s latest proposals for your development or if you want advice on responding to the consultation, please get in touch with us.

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

Matthew White
Matthew White
Partner and Head of Planning, London
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+44 20 7466 2461

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