For developers, the stage of the planning process at which conditions are discharged before the development gets underway can often be the most frustrating. Delays by LPAs responding to the submission of details which require approval can upset project timetables and hinder delivery. New measures introduced by the Infrastructure Act 2015 will provide some comfort in this respect.
The focus of the new arrangements is the concept of ‘deemed discharge’. This will apply to conditions requiring LPA approval of specified matters before commencement. Its effect will be to treat such a requirement as having been met where the LPA fails within a certain period – to be set by future legislation – to respond to a request for approval.
Certain categories of condition will be exempted, probably including those concerning development for which an environmental impact assessment is required and development likely to have a significant effect on designated sites such as SSSIs (Sites of Special Scientific Interest). Conditions relating to flood risk, highway safety, contaminated land and archaeological investigations are also likely to be excluded, as are those requiring reserved matters approval, or a section 106 or section 278 agreement.
There will be a right for LPAs and applicants to contract out of the new procedure, allowing for slower determination where agreed, and the new rules will apply where planning permission has been granted after the new rules come into force – on a date to be determined in due course.
These measures reflect, for the most part, consultation proposals published by the government last summer. They should be welcomed. Discharging conditions is a phase of development that ought to be dealt with swiftly given that the principle of development has, by that stage, already been established. In practice, however, it often leads to delays that can be commercially damaging and frustrate the delivery of much-needed development. This can impact on the availability of finance and the sequencing of development and, at the very least, can lead to expensive down time whilst construction is delayed. And yet it is easy to see why such results are common – there is little incentive for under-resourced LPAs to deal expeditiously with requests for approval and other matters are often prioritised.
In the circumstances the measures proposed should assist. LPAs will be encouraged to allocate sufficient resources to this critical stage of the process and, for the first time, there will exist a real incentive to deal with applications promptly. On the other hand, there must be a risk that some LPAs will resort to refusing applications simply in order to avoid running out of time. Whilst the new legislation appears to offer no disincentive to such an approach, overall the picture is positive and the changes will offer a significant and much needed procedural improvement.