Pre-commencement Condition Reforms 2018

Planning conditions play an important role in addressing or mitigating the impacts of development and well worded conditions which satisfy the necessary statutory tests can assist with the timely delivery of development schemes.

However, it is a long held view by government that the inappropriate use of conditions can cause unnecessary costs and delays to development. A major contributory factor to that delay is identified as an over use of pre-commencement or pre-development conditions.

In effect, such conditions prevent any development on a site commencing until those pre-commencement conditions have been complied with to the satisfaction of the local planning authority (LPA). In some cases, it can prove difficult for such conditions to be satisfied leading to the need for subsequent applications or appeals to modify or remove those conditions. That in turn can cause even further delays and impact on government planning objectives; such as to significantly boost delivery of much needed housing, infrastructure and re-generation schemes.

The proposed solution

The Town and Country Planning (Pre-commencement Conditions) Regulations 2018 ("the Regulations"), comes into force on the 1 October 2018.

These Regulations derive from changes made to the Town and Country Planning Act 1990 (the "1990 Act"), by Section 14 of the Neighbourhood Planning Act 2017. The combination of a new Section 100ZA(8) in the 1990 Act and the Regulations means that after 1 October, a "relevant" planning permission for the development of land may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition. (Section 100ZA (5)).

A "relevant" planning permission is defined in Section 100ZA(13) as one which grants permission to develop land following a planning application under Part 3 of the 1990 Act and includes any subsequent modification of that permission. That includes both changes to conditions and any limitation under that permission.

What pre-commencement conditions apply?

Section 100ZA(8) defines a "Pre-commencement condition" as one imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with -

• before any building or other operation comprised in the development is begun; or
• where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.

The reference to and apparent exclusion of conditions on grant of an "outline planning permission", rather than a specific reference to "reserved matters" conditions is confusing here and suggests that all pre-commencement conditions on outline permissions as a whole are exempt from the restrictions. However, that would be inconsistent with the general thrust of the Regulations which seeks applicant approval to the imposition of all pre-commencement conditions.

The proposed guidance to be issued to LPAs in conjunction with the coming in to force of the Regulations should hopefully clarify that point.

What is the process for imposing these conditions?

The Requirement For Notice

The LPA is required to give notice under s.2(4) of the Regulations which must include:

• the text of the proposed pre-commencement condition;
• the full reasons for the proposed condition, set out clearly and precisely;
• the full reasons for the proposed condition being a pre-commencement condition, set out clearly and precisely; and
• notice that any substantive response must be received by the authority or, as the case may be, the Secretary of State no later than the last day of the period of 10 working days beginning with the day after the date on which the notice is given.

If the applicant does not agree with the proposed pre-commencement condition(s), they will need to provide a "substantive response" which either states that fact or provides comments (revisions to the wording), on the proposed condition.

A substantive response is defined in the Regulations as one which:

• states that the applicant does not agree to the imposition of the proposed condition; or
• provides comments on the proposed condition;

It is sensible and advisable therefore that the applicant comments on why a proposed condition is not acceptable and potentially provides revised wording where possible that would make it acceptable in order to try and agree the condition.

What if the developer does not respond to the notice?

If the LPA does not receive a substantive response, it can determine the planning permission and impose the pre-commencement conditions referred to in the notice providing the 10 working day timeframe has expired.

When does the change take effect?

Any application granted on or after 1 October 2018 will be subject to the regulations.

It is therefore important to note that applications already in the system and not yet determined by 1 October 2018 and any applications which are subject to Section 106 resolutions and currently being negotiated will be subject to the regulations.

This means that even where planning conditions have already been approved by planning committee, LPAs will still need to go through the notice process with applicants before any application can be finally determined and permission granted.

These specific regulations apply to planning decisions in England only.

Comment

The combined effect of the changes to the Act and Regulations is yet a further attempt to speed up the planning process and importantly avoid unnecessary delays to delivery of development schemes.

There is a clear and obvious benefit in allowing applicants the opportunity to input into the pre-commencement conditions. To that extent, the Regulations envisage a level of engagement from both sides with agreement being reached.

However, the reality is more likely to be that there will be agreement on some but not all conditions. In the event of an impasse therefore, the LPA is prevented by the Regulations from granting the permission subject to those conditions. That can only lead to one of two outcomes:

• The refusal of the permission followed by an appeal; or
• Reluctant acceptance by the developer of the conditions which (presumably), will be such that the developer will either need to appeal that decision or delay or incur additional costs in implementation of the scheme (which in some cases can mean significant impacts on financial viability).

In both scenarios, the government's overarching objective to speed up the planning process will not be met.

Further, how will LPAs deal with a situation where an agreed set of conditions is put before a planning committee and members choose to add to or modify those conditions? Does the process have to start again?

Notwithstanding this, it is clearly important for an applicant to respond to any notice served on them under the Regulations in order that they have an opportunity to secure the best possible wording of any pre-commencement condition. Failure to respond at all within the deadlines could result in the planning permission being issued and conditions imposed by the LPA with which the applicant is subsequently unhappy. In that scenario, to what extent will any lack of engagement with the LPA play out in terms of any appeal?

It is also important to note that the Regulations apply only to pre-commencement conditions imposed either before any building or other operation comprised in the development is begun or any change of use is begun. It therefore does not prevent pre-occupation conditions being imposed and potentially we may see more of these being imposed in appropriate circumstances.