New Statutory Process For Pre-Commencement Conditions

On the 1st October 2018 the Town and County Planning (Pre-Commencement Conditions) Regulations 2018 came into force setting out a new process governing the imposition of pre-commencement conditions on planning consents. We reported on the proposed process in our previous blog discussing the consultation back in March. As of 1st October 2018, the new process took effect.

The new process is part of the government’s commitment to speeding up the development process and primarily addressing the apparent delay from the grant of planning permission to a physical start on site.

A summary of the pre-commencement conditions is set out below:-

  • From 1st October 2018, pre-commencement conditions cannot be attached to a planning permission without written agreement from the applicant.
  • The local planning authority (LPA) can issue a notice setting out the terms of a proposed pre-commencement condition. If the applicant fails to provide a substantive response within 10 working days from the date the notice is given, then the LPA may proceed to grant the permission subject to the proposed pre-commencement condition.
  • When a notice is issued, an applicant can:
    • Provide written agreement to the terms of the pre-commencement condition (in which case the LPA can proceed to impose the condition)
    • Indicate that they do not agree (in which case the LPA can either grant consent without the condition, seek written consent on an alternative or refuse the application)
    • Provide comments on the condition (in which case the LPA cannot impose the condition)
    • Do nothing (in which case the LPA can proceed to grant subject to the condition)

In the past many developers will have treated the issue of a planning consent as the end goal, worthy of celebration, only to find that extensive delay ensues seeking to discharge pre-commencement conditions before the diggers start on site. Furthermore, failure to discharge pre-commencement conditions in some circumstances render an entire development unlawful or create difficulties for developers to obtain funding for the development.

Whilst the new process may be welcomed, it seems apparent that the change simply front loads the process and will ultimately delay the time it takes to obtain that all so important consent, putting authorities under further pressure to meet ‘unobtainable’ determination deadlines.

In seeking to convince local planning authorities (LPAs) to grant consent without the imposition of a pre-commencement condition it is inevitable that more detailed information will be required of applicants at an earlier stage. In negotiating the detail of pre-commencement conditions, applicants should be  reminding LPAs of the National Planning Policy Framework (NPPF) guidance (para.55) that ‘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 aspects’.

As with any reform aimed at speeding up the planning process, we appear to have been presented with another layer of local government bureaucracy. Time will tell as to whether this results in an increase in appeals or whether developers take a view… accept the condition now and deal with it later.

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