The Government chose the last month of 2016 to announce some legislative proposals that will have a significant impact on the ability of local planning authorities (LPAs) to impose planning conditions.
Consultation seeking views on proposals for improving the use of planning conditions closed on 2 November 2016 and a little over a month later the Government published its response. The consultation was timed to inform the debate during the passage of the Neighbourhood Planning Bill (“the Bill”), which receives its Second Reading in the Lords on 17 January 2017. The Government’s essential rationale for reviewing the approach to conditions was a perception that too many overly restrictive and unnecessary conditions are being routinely attached to planning permissions.
Two distinct proposals have been put forward by Government in the course of the consultation to address this, first of all measures to control the use (or abuse) of pre-commencement conditions and secondly the concept of outlawing the use of certain species of conditions which already offend against national policy.
On pre-commencement conditions, the Government has decided to press ahead with its proposals to ensure that LPAs must seek the approval of applicants before imposing pre-commencement conditions. In the event that applicants object then the choices open to the LPA will be to change the condition in question, allow the developer to comply with it after the development is underway or, remove the condition altogether. If the LPA wishes to stick to its guns it will have the option of refusing the planning application – but it will need to be confident that the pre-commencement condition is necessary to make the development acceptable. The applicant would then have the ability to appeal the condition and the LPA would be obliged to justify both the substance of the condition and why it is needed at the pre-commencement stage. It is interesting to note that the Government has resisted calls from consultees to introduce a bespoke ‘fast track’ appeal process to deal with any disputes.
In the event that the applicant simply does not respond to the pre-commencement conditions suggested by the LPA, then the Government proposes a default period of 10 working days, (commencing on notification to the applicant of the intention to impose the condition and seeking agreement), after which an applicant’s agreement would be deemed to be given - unless a longer period has been agreed.
Turning to the prohibition of certain conditions, the consultation responses have flagged up some particular concerns about the way that this may operate in practice. To recap, the Bill includes a power to allow the Secretary of State to provide that certain conditions may or may not be imposed in defined circumstances in secondary legislation. The consultation sought views on the prohibition of the conditions set out in guidance, and asked whether there are any other types that should also be prohibited. Six types of condition were singled out for censure, namely conditions which unreasonably impact on the deliverability of a development; conditions which reserve outline application details; conditions which require the development to be carried out in its entirety ; conditions which duplicate a requirement for compliance with other regulatory requirements; conditions requiring land to be given up and, finally, positively worded conditions requiring payment of money or other consideration. Of these, the first and last proved particularly unpopular when it came to LPA consultees. They suggested it would be difficult to determine what amounts to ‘unreasonable impact’, when it comes to delivery of development and championed the continued use of conditions as an alternative to what were characterised as expensive and time consuming section 106 agreements. However, the Government clearly does not share these concerns as it intends to press ahead with measures to outlaw all six types of condition. It has also not been persuaded to add to the list.
So what happens next? The Government has announced its intention to issue a consultation on draft regulations, and will also publish updated guidance to support the changes (assuming of course they are brought forward as and when the Bill is enacted). Judging by the speed with which the Government has responded to the consultation, we may not have long to wait.