In a move designed to reduce delays to commencement of development, from 1 October 2018 planning permission for the development of land in England cannot be granted or modified subject to pre-commencement conditions without the written agreement of the applicant, subject to exceptions set out in regulations.
Pre-commencement conditions have to be complied with before any building or other material operation, including a material change of use, forming part of the development permitted under a planning permission can begin. These conditions are commonly attached to planning permissions to require approval of specific details not known at the application stage or preliminary works, for example approval of details of construction methodology or approval and carrying out of a remediation scheme.
The government wants to ensure that such conditions are only imposed where justified to prevent unnecessary delays or excessive administrative burdens for developers.
The New Rules
The Neighbourhood and Planning Act 2017 will introduce new section 100ZA into the Town and Country Planning Act 1990. The Neighbourhood Planning Act 2017 (Commencement No. 5) Regulations 2018, signed in May 2018, provide for section 100ZA to come into force on 1 October 2018.
Section 100ZA will require local planning authorities (or the Secretary of State) to obtain the written agreement of an applicant before imposing a pre-commencement condition on a grant of planning permission. This section also provides for regulations to prescribe circumstances where this requirement for the applicant’s approval does not apply. Accordingly, the Town and Country Planning (Pre-commencement Conditions) Regulations 2018, which also come into force on 1 October 2018, outline exceptions to this requirement.
Under those Regulations, a local planning authority (or the Secretary of State) can give notice in writing to the applicant stating that, if they grant planning permission, they intend to grant that permission subject to a pre-commencement condition. This notice must contain the text of the proposed condition, full reasons for the condition and full reasons why the condition should be a pre-commencement condition.
The applicant then has ten working days to provide a “substantive response”, which either states that the applicant does not agree with the imposition of the proposed condition or provides comments on the proposed condition.
If the applicant does not provide a substantive response within that 10 working days timeframe, or provides written agreement to the terms of the proposed condition, then the local planning authority (or Secretary of State) can grant the planning permission subject to the proposed pre-commencement condition.
Applicants should look out for these notices during the application process, and ensure that any notices are dealt with promptly to avoid the 10 day timeframe elapsing without providing a substantive response.
It is questionable whether this new process will lead to a reduction in the number of pre-commencement conditions. Authorities will certainly have to give more consideration to whether pre-commencement conditions are justified. It is, however, still open to the authority to refuse the application where an applicant does not agree to a pre-commencement condition, but the authority consider that condition is necessary to make the development acceptable in planning terms. If an applicant is given the choice between accepting the imposition of a pre-commencement condition, or refusal of their application, the applicant may be more likely to accept the pre-commencement condition than face the uncertainties of an appeal process.
Applicants may, however, welcome the opportunity to formally comment on proposed pre-commencement conditions. The refusal of an application based on an applicant not agreeing to pre-commencement conditions may become a ground of appeal where an applicant has provided a substantive response to the proposed condition and the condition arguably should not need to be discharged before commencement of the development.
This process may also give rise to additional grounds for judicial review to grants of planning permission. Failure of the local planning authority to follow the correct process where a planning permission is granted subject to pre-commencement conditions could give rise to grounds for judicial review by third parties.
Discharging pre-commencement conditions are, of course, not the only cause of delays to starting on-site. Funding and viability issues, the general length and complexity of the planning process and the lack of availability of skilled construction workers all contribute to increase the time to reach commencement of development. The imposition of unnecessary pre-commencement conditions certainly does not help, but these new rules may not be sufficiently robust to improve the overall timeframe for the development process.
The new regulations only apply to pre-commencement conditions for planning permissions granted or modified on or after 1 October 2018. Particular care should be taken for applications for planning permission submitted before 1 October 2018 but granted on or after 1 October 2018 to ensure that the new process is complied with.