The Neighbourhood Planning Bill was published last month, with new restrictions on pre-commencement conditions proposed to help achieve one of its key aims - speeding up the delivery of new homes by reducing delays between grant of permission and work starting on site. This article explains what they are, where they came from and considers whether they will work or simply create more problems and delay...

Background

Planning law allows local authorities a wide scope to impose “such conditions as they think fit” [1] though they should also comply with the policy requirements that they should be 1) necessary 2) relevant to planning 3) relevant to the development to be permitted 4) enforceable 5) precise 6) reasonable in all other respects [2].

Pre-commencement planning conditions require certain things to be discharged before work can commence on site. National policy guidance recognises that “when used properly, conditions can enhance the quality of development and enable development proposals to proceed” [3]. However the 2016 Budget recognised “delays caused by planning conditions” [4] and announced the Government’s intention to “legislate to ensure that pre-commencement planning conditions can only be used with the agreement of the developer”.

What is proposed

Clause 7 of the new Bill implements the Budget proposal as follows:

A local authority in England cannot grant planning permission which is subject to pre- commencement conditions, unless it first obtains written agreement from the applicant to the terms of the condition.

The Secretary of State can make regulations specifying the types of conditions, and the particular contexts, that will be covered by this restriction.

The Secretary of State must consult before making such regulations and must be satisfied that they are required for the purposes of ensuring that conditions are necessary, relevant, sufficiently precise and reasonable.

If the applicant refuses to accept the conditions the local authority can refuse to grant planning permission and the applicant can appeal against that decision.

The restriction will not apply to outline consents.

The explanatory notes to the Bill state that the provisions will not prevent local planning authorities from imposing conditions which are “necessary to achieve sustainable development” and anticipates that agreeing these conditions should become a ”routine part of the dialogue” [5].

The Government introduced a consultation on this topic, which closed on 2 November [6]. It asks for:

comments on the principle of the proposed process for prohibiting pre-commencement conditions from being imposed where the local authority do not have the written agreement of the applicant.

views on whether there should be a default period, after which an applicant’s agreement would be deemed to be given.

The consultation also states Government intention to “provide local planning authorities and applicants with greater clarity about conditions that … should not be used in any circumstances.” It includes a table of “examples of conditions that are unacceptable and should not be used” and invites consultees to:

Identify any of the conditions in that table which should be “expressly prohibited in legislation”.

Identify other “types of conditions, beyond those listed in Table 1, that should be prohibited”.

What is interesting about the conditions in Table 1 (though more by omission) is that the “prohibited” list is the same one as appears in the current Planning Framework. Unlike other recent consultation documents, the Government gives little away about other conditions which it thinks might warrant prohibition and it is unclear whether the consultation was genuinely inviting comment or simply keeping the Government’s political powder dry for another day.

For developers and local authorities alike, it is these provisions that could prove to be of greatest significance. Blanket bans on certain types of conditions could stir up intransigent planning departments or simply lead to greater use of section 106 obligations, delaying implementation even more and working directly against the original intention of the legislation. There could also be potential for litigation on the conflict between the local authority power to impose conditions “as they think fit” and a separate but equally statutory list of those that could not be imposed at all.

What’s next?

The Bill had its second reading on 10 October 2016 and has now moved to the Committee Stage. It is neither as long nor as contentious as last session’s Planning Act and could easily be in force by spring 2017.

The Chartered Institute of Archaeologists raised concerns when the Bill was first published, calling it a “significant shift in the balance of power in the decision-making process”. They were mollified by a DCLG statement that heritage and environmental safeguards would remain but if this assurance does not become a formal part of the legislation, CIFA - and other similar organisations can be expected to raise their voices again.