The new rules are introduced setting out the circumstances when planning permission may be granted by the local planning authority or the Secretary of State subject to a pre-commencement condition without first obtaining the written agreement of the applicant. It’s designed as a response by the Government to the development industry’s complaints that local planning authorities in England impose pre-commencement conditions too often and without proper justification.
Planning Policy Guidance requires that planning conditions ought only to be imposed where they are necessary; relevant to planning and to the development to be permitted. They must also be enforceable; precise; and reasonable in all other respects.
The Town and Country Planning Act 1990 Act defines a ‘pre-commencement’ condition as:
‘a condition 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—
(a) before any building or other operation comprised in the development is begun, or
(b) 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 Town and Country Planning (Pre-Commencement Conditions) Regulations 2018 (‘the Regulations’) mean that if the applicant has been notified of the intention to impose the pre-commencement condition and fails to provide a ‘substantive response’ within the ten working day period (specially defined in the Regulations), it means the pre-commencement condition can be imposed against the applicant’s wishes. The application cannot be determined until the period set in the notice unless the applicant provides written agreement to the terms of the proposed pre-commencement condition, or provides what the regulations define as a ‘substantive response’. A ‘substantive response’ means a response which states that the applicant does not agree to the imposition of the proposed condition, or comments on the proposed condition. The Regulations have set out that the period for response is within 10 working days from the day after the date on which the notice is given.A notice must include:―
(a) the text of the proposed pre-commencement condition,
(b) the full reasons for the proposed condition, set out clearly and precisely,
(c) the full reasons for the proposed condition being a pre-commencement condition, set out clearly and precisely, and
(d) 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.
There is no requirement on an applicant to respond to a notice. If the applicant doesn’t respond at all to a notice within the required period, then the applicant will be treated as having given deemed consent to the imposition of the pre-commencement condition. If the applicant makes it clear that they are providing written agreement to the terms of the proposed pre-commencement condition, then the local planning authority may proceed to determine the application, and may impose the pre-commencement condition should they grant planning permission.
But if an applicant does choose to respond without assenting to the precise wording of the proposed pre-commencement condition, or responds ambiguously, then it’s important he risk of that prompting the risk of a refusal of planning permission is fully understood. For example, a local planning authority may refuse the planning application on the basis that planning permission cannot be granted because the pre-commencement condition is necessary to make the proposed development acceptable.
If there is a response to the notice by the applicant that proposes a rewording, or appears to reject the proposed pre-commencement condition then the local planning authority may either grant the planning permission without the pre-commencement condition; seek agreement to an alternative pre-commencement condition (which may require the service of another notice) or refuse to grant permission.
The restriction imposed by the Regulations applies to the majority of applications for a grant of planning permission under Part 3 of the 1990 Act, with some exceptions. It means the majority of conventional planning applications are caught by the regulations, but they do not apply to specialist permissions such as modification or discontinuance orders.
For more information on this subject, please contact Matt Gilks
