New rules on the imposition of pre-commencement conditions

11 October 2018

Under new legislation which came into force on 1st October, Local Planning Authorities (LPAs) will not be able to grant planning permissions with pre-commencement conditions unless they first have written agreement from the applicant to the terms of those conditions.

The legislation is designed to limit incidents where pre-commencement conditions are unnecessarily imposed, thus streamlining the development process.

Under the new rules, LPAs will be required to share draft pre-commencement conditions with the applicant at the earliest possible stage of the determination period.  If the applicant confirms their agreement to the LPA’s condition(s) in writing, they can then be imposed. Where an LPA is not able to obtain this written agreement, it may serve a notice on the applicant including the text of the proposed pre-commencement condition, the full reasons for the proposed condition, the full reasons for it being made a pre-commencement condition, and a notice that any substantive response must be received within 10 working days from the date on which the notice is given.

If a substantive response is not received from the applicant, the LPA may impose the condition without their written agreement.

If the applicant does not agree to the condition, the LPA could amend it, remove it, or make it a post-commencement condition. However, by law the condition must always be necessary to making the development acceptable and either of these options would therefore need to be effective in making the proposed development acceptable in planning terms. Where this is not the case and the applicant does not accept a pre-commencement condition that the LPA considers to be necessary, the obvious implication would be the prospect of a refusal of planning permission.

Many LPAs we work with are already proactive in avoiding unnecessary pre-commencement conditions through dialogue. Whilst the legislation may help make this practice more commonplace, the introduction of a compulsory stage of correspondence also brings risks of delayed determinations or, at worst, avoidable refusals. So it is especially important for applicants and their agents to engage with LPAs as soon as possible on the conditions to be attached to a planning permission.

However, it is not just pre-commencement conditions that can cause difficulties and delays in delivering approved development.  At Nash Partnership we have an established practice of routinely seeking to review and discuss proposed conditions with planning officers during the determination period to ensure they are necessary and appropriately worded.

If you have any queries feel free to get in touch with a member of the Nash Partnership planning team.