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Be prepared – new rules regarding pre-commencement conditions come into force 1st October 2018

Pre-commencement conditions

Despite existing good practice it would seem that the days of collaborative working, when a planning officer would advise or discuss with agents and applicants the planning conditions to be attached to a development proposal before issuing their decision, are waning.

Nowadays we increasingly find that we need to employ all our skills of negotiation and engagement to encourage officers to advise us of their recommendation before a decision is made. Undoubtedly this comes down to the ongoing problem of time pressures and a lack of resources for many Local Planning Authorities (LPA’s), but the benefit of dialogue between applicant and officer can often resolve issues and save time and money for all parties, without the imposition of onerous or unnecessary conditions.

Government guidance on pre-commencement conditions advises that they should only be used where the LPA is satisfied that the requirements of the condition are so fundamental to the development permitted, that it would have been otherwise necessary to refuse the whole permission.

Despite this, pre-commencement conditions attached to a decision are often onerous, requiring submission of further details, sometimes before any development is commenced. This can be frustrating, particularly where details required by pre-commencement conditions would be better informed once works have started on site.

What are pre-commencement conditions?

A pre-commencement condition is a condition imposed on a grant of planning permission. These conditions must be complied with (i) before any development has begun or, (ii) where the development consists of a material change of use of any buildings or other land, before the change of use has begun.

These conditions need to meet the 6 tests set down by the NPPF, which state that planning conditions must be:
1) Necessary;
2) Relevant to planning;
3) Relevant to the development in question;
4) Enforceable;
5) Precise; and
6) Reasonable.

Currently, the only way to challenge conditions attached to a permission (where an officer has not been willing to engage during the application process) is to submit another application, asking that the condition is removed or varied.

This results in another 8-week minimum determination period, another fee and an uncertain outcome.

Until now.

The Town and Country Planning (Pre-commencement Conditions) Regulations 2018 come into force on 1st October 2018. These regulations mean that from that date, a pre-commencement condition cannot be imposed on the grant of planning permission without the written agreement of the applicant to the terms of the condition (this does not apply to outline planning permission).

How do the revised pre-commencement conditions regulations work on paper?

The revised guidance states that the LPA is expected to share with the applicant any draft pre-commencement conditions at the earliest opportunity. If written confirmation agreeing to the proposed conditions is received, then they can be imposed.

If written agreement has not been received, the LPA can seek written confirmation by serving a notice on the applicant. This seeks to invite agreement, or otherwise, within a set period and must include the full text of the pre-commencement conditions and the full reasons for the proposed pre-commencement conditions.

If no response is received within the specified time frame, then the condition can be attached. If however, the applicant opposes the imposition of the condition the LPA can either:
+ grant permission without the condition;
+ or refuse the permission if it considers it is necessary for the proposal to be acceptable in planning terms.

Where written agreement is not received and/or where conditions do not meet the legal and policy tests, they may be found to be unlawful by the courts and therefore not enforceable by the LPA if breached.

And in practice?

Our team at Plainview can help ensure that the new regulations are being adhered to and applied to your application. We can advise you on whether conditions proposed by LPA are likely to meet the 6 tests and assist you in preparing your response to any notice served, guiding you through the process and implications for your planning permission.

Pre-commencement conditions can be very powerful! Bear in mind that unless the conditions are dealt with and discharged prior to development, any work done to implement a planning permission may be unlawful with the knock on consequence that the planning permission has not or cannot be implemented lawfully. In some cases, this could result in expiry of a permission – and that is a whole other area of planning….which we can also advise on!

If your project could benefit from our professional expertise, then get in touch via enquiries@plainview.co.uk or alternatively call us on 01242 501003.

RESOURCES: MHCLG Planning update newsletter (September 2018)