Over the last decade there has been a steady increase in the number of conditions imposed on planning permissions by local planning authorities. In particular, the number of pre-commencement conditions has also increased. These conditions require details to be submitted for approval or certain works to be undertaken before development authorised by the planning permission can commence.
Generally, the development authorised by a planning permission must be implemented within three years from the date of being granted. The number of pre-commencement conditions imposed and the time typically taken by local planning authorities to approve the details submitted, can create real problems for both small and large developers. This is particularly the case where pre-commencement conditions are imposed without prior discussion with the applicant.
On 1st October 2018, Regulations came in to force, which require local planning authorities to obtain the applicant's written approval before they impose any pre-commencement conditions on a planning permission. The Regulations apply to pre-commencement conditions imposed on full planning permission only.
Under national policy and guidance, all planning conditions must be necessary to make the development acceptable in planning terms, relevant to the development, relevant to planning, sufficiently precise and enforceable and reasonable in all other respects.
The local planning authority must give notice to the applicant stating that they intend to impose pre-commencement conditions. The notice must include the authority's full reasons for the proposed condition and why those conditions must be complied with prior to commencement of the development authorised by the planning permission.
The applicant then has ten working days to respond. If the local planning authority receives no response they can issue the planning permission with the specified pre-commenment conditions. If the applicant responds objecting to the proposed conditions, the local planning authority cannot issue the planning permission containing the specified pre-commencement conditions. In reality, this will likely result in the permission being refused.
The Regulations are intended to avoid local planning authorities unnecessarily imposing pre-commencement conditions, to ensure it is clear why pre-commencement conditions are required and to ensure such conditions are discussed with the applicant before the planning permission is granted.
The intention behind the Regulations is welcome. Pre-commencement planning conditions can be onerous and expensive to comply with and should be imposed sparingly by local planning authorities. Importantly, failure to comply with a pre-commencement planning condition can render any works undertaken unlawful and liable to enforcement action. Even if no enforcement action is taken, a developer that cannot demonstrate that all pre-commencement conditions have been discharged is likely to encounter difficulties in the future, for example if the development is to be sold or finance secured against it.
In practice, the Regulations will allow the applicant to refuse the insertion of pre-commencement conditions. It is not clear whether doing so will allow meaningful negotiations to take place or whether the planning applications will simply be refused.
The Regulations could, in fact, result in more appeals to the Planning Inspectorate as a result of more of planning permissions being refused due to the applicant's refusal to give consent.
It remains to be seen whether the Regulations will achieve their intended outcome. Time will tell.
If you are considering carrying out development that is not permitted by agricultural permitted development rights, have any concerns about pre-commencement conditions or whether development carried out in breach of a pre-commencement is lawful, please contact us:
Alex McKerron: +44 1872 243356 or email [email protected]
James Clark: +44 1872 243344 or email [email protected].