It has long been recognised that the number and nature of conditions on planning permissions is a significant contributing factor in delays to the delivery of development. The introduction of a formal application system for dealing with the discharge of conditions was intended to make the process easier. However, in practice, any benefits of this have not materialised.
The National Planning Practice Guidance advises that “the local planning authority should respond to requests to discharge conditions without delay, and in any event within 21 days”. We have had personal experience of this being achievable. However, that is very rare.
The Neighbourhood Planning Act 2017 introduced a requirement that local planning authorities must obtain the written agreement of an applicant before imposing a pre-commencement condition on a grant of planning permission. A pre-commencement condition is defined as one which must be complied with before any building or other operation comprised in the development or material change of use is begun. This was part of the government’s commitment to improving the use of planning conditions and reducing unnecessary delays in the determination of planning applications.
The regulations to bring that legislation into force have now been published. The date set for the changes coming into force is 1st October 2018.
The legislation states that the local planning authority cannot grant planning permission without the applicant agreeing to any pre-commencement conditions.
The regulations deal with this by requiring the local planning authority to give notice in writing to the applicant if they intend to grant permission subject to pre-commencement conditions. The local planning authority must provide the applicant with the full text of the proposed conditions, the reasons for proposing them and the reasons why the Council considers it to be necessary for them to be pre-commencement.
The decision notice cannot then be issued until a period of 10 working days has passed or the applicant has confirmed in writing their agreement to the pre-commencement conditions.
This all sounds very positive and helpful. However, the obvious flaw is that there is no provision for what happens if an agreement is not reached. The default position of the legislation has to be adopted, which is that planning permission cannot be granted without agreement. The implication of this is that planning permission could then be refused.
It remains to be seen how this will play out in practice when the legislation comes in to force. It is anticipated that some authorities will approach it in the way it was intended and will positively engage with applicants to reach an agreement. However, we do not expect this to always be the case. Where Councils act unreasonably, it will be necessary to resort to appeal against refusals of planning permission to challenge their position.
Nonetheless, this has to be a step in the right direction towards enabling the delivery of development.
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