The Government has outlined the changes it intends to take forward to implement provisions on deemed discharge of planning conditions. The Infrastructure Bill, currently progressing through Parliament contains the enabling power. The detail of how a deemed discharge would work in practice requires secondary legislation, and this was one of the subjects of the technical consultation on planning over the summer. The Government has now issued a part response which sets out how it intends to take forward this proposal, once the enabling power is confirmed.
Deemed discharge for what types of conditions?
A deemed discharge would only apply to planning conditions that are attached to planning permission when it is granted and that require the further approval of the local authority on matters of detail. Where not exempted and subject to following the correct procedure, a deemed discharge would mean that the condition would be treated as approved (deemed to be discharged) where a decision has not been made on the application by the local planning authority within a prescribed period.
Following the consultation it is intended to exempt the following from the deeming provisions:
- All conditions attached to Environmental Impact Assessment (EIA) development.
- All conditions attached to development that is likely to have a significant effect on a qualifying European site.
- All conditions affecting Sites of Special Scientific Interest (SSSIs).
- Conditions designed to manage flood risk.
- Conditions that have the effect of requiring that an agreement under Section 106 of the Town and Country Planning Act 1990 (as amended), Section 278 of the Highways Act 1980 be entered into.
- Conditions requiring the approval of details for outline planning permissions required by reserved matters.
- Conditions relating to the investigation and remediation of contaminated land.
- Conditions relating to highway safety.
- Conditions relating to investigation of archaeological potential.
With the exception of the EIA, the European sites and the SSSIs exemption, the Government intends to apply the exemptions to those conditions that relate to the reason for the exemption, rather than to all the relevant conditions attached to the planning permission.
With regard to other exemptions suggested by respondents, the Government does not consider it necessary to have exemptions for areas that are managed under other regimes e.g. species protection, noise and some heritage assets (such as listed buildings) as it considers that these offer a separate and effective means of protection.
Process for obtaining a deemed discharge of condition(s)
The response confirms that the Government intends to take forward the procedural elements in the form proposed in the consultation paper.
The consultation envisaged that the deemed discharge process could be commenced if the local authority has not determined an application within six weeks, starting on the day after the local authority receives the application. But deemed discharge will not be automatic. In order for the applicant to rely on deemed discharge, the consultation stated that the applicant would be required to serve notice on the local authority after the six weeks had past, giving the authority at least a further two weeks to determine the application for discharge. Only if the local authority then failed to do so would discharge be deemed.
The consultation also stated that the option to appeal against the Council's non-determination of an application for discharge of conditions would be removed once the applicant had started the deemed discharge process. Importantly, if the developer then did not then carry out the development in accordance with the details submitted for approval (and subsequently given deemed approval), it would be open to the local authority to take enforcement action.
The consultation also covered a number of further proposals including:
- reducing the time limit for refunding the fees for seeking confirmation of compliance with conditions;
- requiring local authorities to consult on draft conditions with applicants of major development schemes; and
- requiring local authorities to justify the use of timing of pre-commencement conditions.
The Government's response to the consultation does not refer to these further proposals. It is to be assumed that they may also be taken forward, as set out in the consultation. See our briefing on the consultation which provides more detail on the further proposals.
The response confirms that it is the Government's intention to publish planning guidance on its expectations of third parties in cases where their advice is sought.
It is the Government’s intention to introduce supporting secondary legislation on the procedural detail of a deemed discharge once the primary power is confirmed. Subject to the Infrastructure Bill being enacted, the changes should be introduced in the current Parliamentary term and the regulations brought into force by April 2015.
The reforms are likely to be welcomed and appear to strike the right balance. The measure retains safeguards through appropriate exemptions for the most sensitive types of condition.The notice procedure will ensure that the local authority will always be aware of the developer's intention to rely on deemed discharge. There is also flexibility to promote discussion between the local planning authority and the applicant; a deemed discharge would need to be activated and would not be automatic and timings can be changed if there is agreement between the local authority and the applicant.