Help! I haven’t discharged my pre-commencement conditions!

Picture the scene:

You’ve secured planning consent. 

You’re excited.

You start building.

But then realise you have not discharged your pre-commencement conditions!

This scenario is all too common. It is not the end of the world, but situations such as this do need to be handled carefully.

Permission extant? 

If the planning permission is still valid (usually less than 3 years old), then it can be as simple as retrospectively applying to discharge the conditions. Depending on the nature of the condition, there may be some difficult conversations to have with the various council officers.

For instance, in a recent case of ours with Cotswold District Council, a pre-commencement condition for a contamination survey was overlooked. The developer had already finished off the flooring of the development, and was then trying to retrospectively discharge the contamination condition. We responded with a delicate and pragmatic approach to ensure the contamination officer was satisfied that the site was safe, without the need to rip up all the developer’s hard work.

Permission expired?

If the planning permission has expired, then you will likely need to either:

  • secure a fresh planning permission;
  • or try to argue that the pre-commencement condition was poorly drafted and/or did not go to the heart of the permission.

There is a plethora of case law on this point and much will depend on the specifics of your project.

If you need a fresh permission, bear in mind that the prevailing planning policy position might have changed. For example, if you have secured planning permission outside a settlement boundary on the basis of a lack of 5 year housing supply, that policy position may have changed and the Council may not support a new application.

Such a stance by the Council can understandably be seen as unreasonable, after all, if the site was deemed not to cause significant and demonstrable harm previously, then why should it now be resisted? Especially given that historic planning permissions can be material considerations. As Justice Woolf noted a Council should not “wholly disregard a preexisting permission. That there was a pre-existing permission may still be a relevant or material circumstance that a local planning authority is permitted to take into account…” However, developers should not be complacent, as Justice Woolf then states that a Council “must do so properly and… not give it more weight than appropriate.”

If you are in a conundrum with your planning conditions and need professional planning consultancy support to see how best to discharge them, contact our knowledgeable team today to see how we can assist via