Under new Regulations due to come in to force on 1st October, applicants will be required to provide their written consent to pre-commencement conditions unless exclusion applies. The Regulations were made under powers given in the Neighbourhood Planning Act 2017. Pre-commencement conditions are those conditions on a planning permission which must be fulfilled before work starts on site or before the use of land changes.

What are the new Regulations designed to achieve?

The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. It sees the need to reduce 'the number of unnecessary and otherwise unacceptable conditions attached to permissions’ and ‘to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Policy Framework.'

The changes are presented as a planning-friendly means of creating efficiency and speeding up the development process.

What are the key points?

These are the key points in relation to pre-commencement conditions:

  • The basic position will be that planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition.
  • The legislation allows for exclusions to this to be made, but, as of yet, no exclusions have been prescribed.
  • Planning permission may be granted subject to a pre-commencement condition without the applicant’s written agreement, if the applicant has been notified of the intention to impose a pre-commencement condition and has not responded by the date specified in the notice.
  • Local Planning Authorities (LPAs) will have to give notice of their intent to attach a pre-commencement condition to a planning permission. The notice must set out:
    • the text of the pre commencement condition
    • the full reasons for the condition
    • the full reasons for the condition to be pre-commencement condition
    • notice that a substantive response is to be received no later than the last of the period of 10 working days beginning with the date after the date on which the notice was given.
  • If no substantive response is received from the applicant they will be deemed to have consented to the pre-commencement condition. In other words, if the applicant does not respond to the notice within ten working days either advising that they do not agree with the proposed condition, or providing comment on the proposed condition, the pre-commencement condition could be imposed. This means it will be vital for developers to comply with the strict timetable that the government has justified as necessary in order to avoid ‘undue delay’.
  • A time limit of longer than 10 working days could be agreed in writing by the applicant and the LPA.
  • If the applicant does not agree to the proposed pre-commencement condition, the LPA could amend it, remove it, or make it a post commencement condition. If none of these options would make the development acceptable, planning permission would be refused.
  • The LPA will be able to decide at what point during the determination process it seeks the applicant's agreement to a pre-commencement condition.
  • The Regulations apply only to conditions on a planning permission granted or modified after 1st October.

Existing criteria for planning conditions

These powers may seem far-reaching but it is important to remember that planning conditions must satisfy the tests that they are:

  • necessary to make the development acceptable in planning terms
  • relevant to the development,
  • relevant to planning,
  • sufficiently precise
  • enforceable and reasonable in all other respects.

Conditions are a useful tool for a LPA to control development. However, developers can find themselves entangled by a web of conditions that they must discharge before they are permitted to even commence development. The increasing use of pre-commencement conditions has been an irritation to developers for a long time and is generally cited as a cause of unnecessary delay to building out. These Regulations give applicants an opportunity to have more input into draft permissions and hopefully when the permissions are issued they will be in manageable shape from a commercial perspective. It does also mean though, that more extensive discussion and negotiation may be necessary before permission can be granted. Potentially this could slow down the process of obtaining planning permission. We will have to wait and see if the delay is simply moved from post-consent to pre-consent.

The Regulations will also encourage developers to consider the choice between the:

  • investing in front loading their planning application by providing information in the early stages which would avoid the need for a pre-commencement condition
  • agreeing to pre-commencement conditions being imposed, allowing them to provide this information at a later date so as not to risk delaying the grant of planning permission.

As a result of these changes developers will need good professional input to negotiate conditions precedent, advise on whether it is tactically advisable to accept such a condition, risk appeal or adopt a practical approach in any given scenario.

If it becomes common practice for applicants to disagree to pre-commencement conditions, we may find that there are significant delays to the grant of planning permissions, an increase in refusals and consequently more appeals. These issues are all counterproductive to the government's aim of speeding up delivery of housing.