The consultation seeks to address Government concerns that overly restrictive and unnecessary conditions are routinely attached to planning permissions, increasing developer and local authority costs and negatively impacting on the delivery of development.  The consultation seeks views on a number of proposals further set out below.

A deemed discharge of planning conditions

The proposal is that deemed discharge should apply to all conditions save for those which relate to:

  • EIA development;
  • development subject to the Habitats Regulations;
  • development in areas of high flood risk;
  • the need to enter into a section 106 or section 278 agreement before development can be commenced;
  • conditions requiring approval of details for outline planning permissions required by reserved matters.

The proposals envisage 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.  However, deemed discharge will not be automatic.  In order for applicant to rely on deemed discharge, the current proposal requires the applicant to serve notice on the local authority after the six weeks have past, giving the authority at least a further two weeks to determine the application for discharge.  Only if the local authority then fails to do so will discharge be deemed.

The option to appeal against the Council's non-determination of an application will be removed once the applicant has started the deemed discharge process.  Importantly, if the developer does not then carry out the development in accordance with the details submitted for approval (and subsequently given deemed approval), it will be open to the local authority to take enforcement action.

The Government is seeking views on the timescales and process for deemed discharge as well as whether deemed discharge should also apply to conditions attached to other consents, such as advertisement consents and planning permission granted by local development order.

Reducing the time limit for refund of the fees for seeking confirmation of compliance with conditions

Applicants are entitled to a fee refund for requests which seek confirmation of compliance with conditions, if local authorities have not notified applicants of their decision after 12 weeks.

The consultation proposes to reduce this 12 week period to 8 weeks, beginning on the date on which the authority received the request.  Views are sought on whether the 8 week time period is appropriate and any instances where it would not be appropriate to return the fee.

Requiring local authorities to consult on draft conditions with applicants of major development schemes

The consultation proposes that the local authority should be required to share a draft of the proposed conditions before making a decision for all major developments.  The intention is to allow the local authority and applicant to discuss whether the conditions proposed meet the tests set out in the NPPF and how the timing of triggers, and requirements for submission of further details for approval will impact on delivery of the development.

The consultation seeks views on whether this should be limited to major development (as defined in Article 2 of the Development Management Procedure Order 2010), and on the appropriate time to share and discuss conditions.  At the moment, the consultation proposes that draft conditions should be shared fairly late in the process, at least 5 or 10 working days before planning permission is granted.

Views are also sought on how to deal with conditions imposed at planning committee meetings, and whether there should be an opportunity to discuss these before a final decision is made.

Requiring local authorities to justify the use of timing of pre-commencement conditions

Finally, the consultation proposes that local authorities should be required to provide written justification on the necessity of imposing pre-commencement conditions.  This will need to explain why it is necessary for that particular matter to be dealt with before development can be commenced and will be required in addition to the general justification required on imposing conditions.

The consultation seeks views on what more could be done to ensure that conditions requiring further action to be taken before a development can go ahead are appropriate, and that the timing is suitable and properly justified.

Comment

This reform is long overdue.  Many permissions contain large numbers of conditions; this is explicitly noted by the consultation which cites one permission considered as containing around 100 conditions.  The consultation also notes that around half of all applications for discharge of conditions considered took more than six weeks to determine.

However, it's important to ensure the balance is right so the changes don't lead to knee-jerk reactions to refuse applications for discharge of planning conditions.  A requirement for the applicant to serve notice on the local authority seems unnecessarily complex and may well trigger such a knee-jerk reaction.

A combination of justifying pre-application conditions and ensuring that draft conditions are discussed between the applicant and local authority will hopefully help to reduce unnecessary conditions.  But to be meaningful any discussion must take place early enough to ensure that it can influence an officer's recommendation and the final decision made.

The Government should be encouraging an open dialogue between the applicant and the local authority from the outset, and for major development that could include a requirement for the developer to take the lead in drafting an initial set of conditions to be submitted with its application.