The recently published National Planning Policy Framework (“NPPF2”) is clear that planning conditions should be kept to a minimum and pre-commencement conditions (those that are required to be discharged before development can commence) should be avoided.

To strengthen this policy position, legislation came into force on 1 October 20181 to prevent local planning authorities (“LPAs”) from granting planning permission subject to any pre-commencement conditions that have not been agreed in advance with the applicant.

The Government’s intention is to promote discussion of conditions in advance of permissions being granted and to reduce the number of unnecessary conditions attached to permissions. The hope is that by engaging applicants early, any time lag between grant of permission and commencement of work on a site will be reduced, there will be fewer refusals and appeals, and less uncertainty during the application process.

In order to impose any pre-commencement conditions, the LPA must now serve a notice to the applicant containing:

  • the text of the pre-commencement condition;
  • the full reasons for the condition;
  • the full reasons for the condition to be pre-commencement condition; and
  • notice that a substantive response (either objecting to the imposition of the condition or providing comments on the condition) is to be received within 10 working days (the “Notice Period”).

The planning application may be decided: (i) prior to the expiry of the Notice Period if the LPA receives a substantive response or written agreement to the terms of the proposed pre-commencement condition; or (ii) upon the expiry of the Notice Period if the applicant has failed to provide a substantive response. Where a substantive response is made, the LPA can remove the condition, amend it, make it a postcommencement condition, or refuse the permission.

Being vigilant of the 10 day Notice Period will therefore be critical for any applicants wishing to influence the proposed imposition of a pre-commencement condition.

We have already seen a reduction in the number of precommencement conditions being imposed by LPAs and hopefully this latest legislation will continue this trend. It may well be, however, that any delay in this part of the process is simply brought forward from the post permission stage; and additional time to agree the draft conditions will be required in advance of a decision. Whether the overall time from submission of planning applications to starting works will reduce remains to be seen...

Planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects… Conditions that are required to be discharged before development commences should be avoided, unless there is a clear justification.

National Planning Policy Framework, July 2018