A new start for pre-commencement conditions

They can be the bane of the development community’s existence; the euphoria of securing a planning permission soon dampened by the realisation that work cannot begin until a raft of pre-commencement planning conditions have been discharged. Sometimes this involves revisiting details that were submitted with the planning application. Is section 100ZA the saviour?

From October 1, 2018, under section 100ZA of the Town and Country Planning Act 1990, 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 (except in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the “Regulations”)).

It is worth noting at the outset that pre-commencement conditions (meaning conditions that prevent any development authorised by a planning permission from beginning until the condition has been discharged) should, according to Planning Practice Guidance, only be used where the local planning authority is satisfied that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would have been otherwise necessary to refuse the whole permission. Despite the apparently high barrier, planning permissions continue to be granted subject to a multitude of such pre-commencement conditions.

In one of many attempts to reduce the time lag between planning permissions being granted and work commencing on site, the Government has sought to further strengthen the hand of the developer when it comes to the imposition of pre-commencement conditions. This is an area of concern identified in the Letwin review.

The Government anticipates that, in line with existing best practice, local planning authorities and applicants will discuss the range of planning conditions (including pre-commencement conditions) that will need to be imposed during the course of application negotiations and before a final decision is made. It is expected that local planning authorities will share with the applicant any draft pre-commencement conditions at the earliest possible opportunity. If the applicant confirms their agreement to a pre-commencement condition in writing, that pre-commencement condition can be imposed and the procedures set out in the Regulations do not apply. Planning Practice Guidance suggests that a Planning Performance Agreement could be used to set a timetable for discussions about conditions and the benefits of doing so are likely to be increased in the context of the new regime.

Where agreement has not been reached in respect of a pre-commencement condition, the Regulations allow the local planning authority (or the Secretary of State, as the case may be) to give notice in writing to the applicant that it intends to grant planning permission subject to a pre-commencement condition set out in the notice. The notice must include the text of the proposed pre-commencement condition, the full reasons for the proposed condition and the reasons for which it is proposed to be a pre-commencement condition and state that any substantive response must be received no later than 10 working days starting with the day after the notice is given. The application cannot be determined until the notice period expires, unless the applicant has provided a written response or agreement to the pre-commencement condition.

Planning Practice Guidance sets out the options available to the applicant if they receive such a notice from the local planning authority. The applicant can either provide written agreement to the condition within the time limit (in which case the local authority can grant permission subject to such condition), provide comments on the condition (in which case the condition cannot be imposed), choose not to respond (in which case the local planning authority may grant permission subject to such condition) or indicate that they do not agree with the condition. In the event that the applicant indicates that they do not agree with the condition, the local planning authority may either grant planning permission without the pre-commencement condition, seek written agreement to an alternative pre-commencement condition or refuse to grant permission (if it considers that the disputed condition is necessary to make the development acceptable in planning terms).

It is worth contemplating the potential implications of the new regime. Clearly, there is scope for far more discussion and negotiation regarding the imposition of conditions prior to permission being granted. While this already occurs to some extent, the need to gain the applicant’s agreement to pre-commencement conditions will undoubtedly raise the stakes of such negotiations and focus the mind of both applicants and local planning authorities. As such, there is potential for delays in the grant of planning permission, with some of the time spent discharging pre-commencement conditions post-grant simply displaced to accommodate negotiations before planning permission is granted.

However, local planning authorities may adopt a bullish approach and choose to force the issue by utilising their notice-serving powers set out in the Regulations. In the event that negotiations reach an impasse (and some local planning authorities may prove more patient then others), local planning authorities can apply pressure on the applicant by serving a notice requiring a ten-day response. Assuming the local planning authority is confident that it can justify the imposition of the condition in accordance with the usual tests (necessary to make the development acceptable in planning terms, relevant, sufficient precise and reasonable in all other respects), then it can effectively threaten to refuse planning permission unless the applicant either accepts the condition or engages and shows willingness to consider potential alternatives. It will take a brave developer, when served with a notice, to refuse to come to the table. A developer may take the view that it is preferable to accept the imposition of a pre-commencement condition so as not to risk delays in the grant of planning permission or even a refusal. In this case, there may be little change in practice.

Ultimately, it can only be hoped that the new regime: leads to more serious consideration of the necessity of imposing pre-commencement conditions; leads to the imposition of fewer pre-commencement conditions, thereby reducing the time lag between permissions being granted and implemented; affords developers greater influence so as to hopefully achieve more ‘workable’ consents (with perhaps fewer variations in consequence) and leads to more of the matters currently kicked into the ‘post-permission long grass’ being resolved prior to the grant of planning permission without causing undue delays in the process. This is a tall order and, as the new regime comes into force, there will no doubt be much consideration as to the tactics to be employed by both local planning authorities and applicants when it comes to agreeing pre-commencement conditions. It is tempting to think that a new battle of conditions is about to commence.