Before you begin: pre-commencement planning conditions

The Government is currently consulting on proposals to improve the use of planning conditions by clarifying when a pre-commencement planning condition can be imposed without the written agreement of the applicant.

Old and new consultations

The government has been cogitating over 'improving the use of planning conditions' for the last couple of years. In its response to the September 2016 consultation, it proposed requiring local planning authorities ("LPAs") to seek the agreement of the developer to any pre-commencement conditions. In doing so, it sought to 'place best practice on a statutory footing' in order to save time by not having to discharge any pre-commencement conditions before development could commence.

It aimed to help address the "urgent need to tackle the inappropriate use of ‘precommencement’ conditions," by introducing a power in the Neighbourhood Planning Act 2017 to ensure that these conditions can only be used with the agreement of the applicant.

Following that consultation, the Neighbourhood Planning Act 2017 introduced section 100ZA into the Town and Country Planning Act 1990 ("TCPA"). When brought into force, sections 100ZA(4) (5) and (6) of the TCPA will prohibit the grant of planning permission subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition except in prescribed circumstances. The Government issued a new consultation paper on 30 January 2018 seeking views on draft regulations which set out the circumstances when a pre-commencement condition can be imposed without the written agreement of the applicant.

Essentially, this would only be possible where no 'substantive response' (i.e. written comments or objection) is given by a developer within 10 working days of a notice from the LPA setting out the terms of a proposed precommencement condition. An application cannot be determined before the 10 working day period has passed, unless agreement is given or a substantive response received by the LPA. The notices relating to the proposed conditions must specify reasons for imposing them, including why such a condition must be a precommencement condition.

What could this mean for developers?

It is hard to see how this will streamline the granting of planning consents, although it may reduce the number of precommencement conditions. Whilst the 10 working day period would require prompt action from the developer, if there is a late proposal by the LPA of such a condition, it may mean that the application has to be carried over to a later committee date, which could be an issue for developers.

Clearly, well-advised developers will simply fail to agree to any onerous Grampian-type conditions. What happens then? The LPA could refuse consent on the grounds that, in their view, consent cannot be granted without such a condition, leaving the developer to appeal the refusal. Alternatively, the LPA could grant the consent subject to such condition, leaving the developer to appeal against the condition, apply under section 73 of the TCPA to vary the condition, or apply for a new consent altogether. There is nothing new here.

A commonsense approach to deal with many pre-conditions which do not 'go to the heart' of a development would be to allow the LPA to agree an alternative timescale if the condition proves genuinely tricky to satisfy before development is ready to begin. Courts can already decide whether a pre-commencement condition which has not been satisfied prevents a consent from having been implemented. They distinguish between, on the one hand, those pre-commencement conditions that are fundamental to the development and must be satisfied and, on the other, others with are 'nice-to-have' but not critical.

Many conditions in the latter category could incorporate a qualification to allow the LPA to consent to an alternative timescale for delivery, which would remove the need for a s.73 application to vary it. For example, a pre-commencement condition to supply details of surface finishes could be qualified to allow them to be supplied before any above-ground works are commenced. Clearly, what works in each case will depend upon specific circumstances.

Conditions which are fundamental to the development are a more problematic category. These are the ones that the new proposals might best seek to address and for which this negotiated agreement should be sought. It is exactly these which a developer will resist, as they are the ones most likely to hold up the works, cost money or require complex negotiations with other landowners or developers. It is these conditions which, if not agreed, will end up in court, subject to appeal.

However, the proposals might encourage developers and LPAs to try to think round such a condition before it is imposed, which might take time prior to determination of the application, but could save time later on when the condition provides a stumbling block to the carrying out of the development. The proposed new regime would also alert developers or planning consultants to the imposition of tough conditions by a demanding LPA, and require reasons for them to be given up-front and in good time, rather than at the last minute before the committee considers the application.

There is a possibility that what would currently 'qualify' as a proper planning condition might be 'converted' into a section 106 obligations. The tests for each are different:

• Planning conditions must satisfy the 6 tests set out in the NPPF ie they must be necessary, relevant to planning and to the development permitted, enforceable, precise and reasonable in all other respects.
  
  
• The test for a section 106 obligation is that it must be necessary to make the development acceptable in planning terms, directly related to the development, and fair and reasonable in scale and kind.

Creative reading of these tests could mean that pre-commencement obligations could be used as a means of imposing such requirements under the radar. Developers should be vigilant and remember that incorrect use of either planning conditions or section 106 obligations could render a planning decision susceptible to challenge by appeal or Judicial Review. It would also potentially mean that more obligations need to be discharged at a very early stage in the development process. 

Responding to the consultation

The new consultation contains the draft Regulations. It allows general observations to be made but the questions focus on:

• whether the LPA should be required to give full reasons for the conditions and why they should be pre-commencement conditions;
  
  
• the scope of the 'substantive response' required of the developer; and
  
  
• the 10 working day deadline by which a developer must respond to comment on or object to such conditions.

The consultation closes at 11.45 pm on 27 February 2018 and we will report on the outcome in due course. The Regulations are expected to be enacted in April 2018.