On 30 January this year, the Government published its consultation proposals for giving effect to the restriction on pre-commencement conditions contained at s. 100ZA of the Town and Country Planning Act 1990.
Under the draft regulations (The Town and Country Planning (Pre-commencement Conditions) Regulations 2018) which are likely to come into force in April 2018, an LPA will only be able to impose a pre-commencement condition if, following notice of the wording to the applicant, the applicant has either agreed to the condition or has not substantively responded within a specified timetable (at least 10 working days). Where actual or deemed agreement is not forthcoming, the council’s only options are either to approve the permission without the condition, or to refuse it. Alternatively, a council could choose the evergreen third option, which is to do nothing and let the applicant appeal for non-determination.
It will be interesting to see how effective this mechanism is. Faced with a refusal because there is no agreement on a pre-commencement condition, a confident developer may automatically push the application to appeal. However, if there is a risk that the application will be refused at appeal, a more sensible approach would be to accept the condition (albeit, under protest), and then submit a s. 73 application the day after the permission is granted, looking either to remove the condition altogether, or (more likely) to vary its timing. If the s. 73 application then needs to be appealed, the developer will at least have the comfort that the original planning permission is secure.
There are a couple of likely consequences of all of this. Once this provision is in force, we are likely to see fewer pre-commencement conditions on planning permissions, and particularly, on the permissions for relatively uncomplicated and uncontroversial developments. However on the less clear-cut applications, councils may try to circumvent the s. 73 risk by ‘smuggling’ pre-commencement requirements into their s. 106 agreements. The reason being that, although there is an automatic right for a developer to apply to vary a s. 106 agreement and to appeal against any refusal of that application, that right only ‘kicks-in’ five years after the original agreement was signed (s. 106A (3) & (4)). In the mean time, the developer simply has to live with the s. 106 terms.
Hence, a couple of simple predictions for the second half of 2018 are that arguments about s. 106 agreements are likely to become more heated, and there should be an increase in s. 73 applications and appeals.