In an attempt to reduce delays between the grant of planning permission and work starting on site, with effect from 1 October 2018, the Government has introduced new rules that mean that, subject to exceptions, planning permission for the development of land in England cannot be granted or modified subject to pre-commencement conditions without the agreement of the applicant.
What are pre-commencement planning conditions?
Also known as “Grampian” conditions, pre-commencement planning conditions are those must be complied with before any building work or any other material operation (including a material change of use) forming part of the development permitted under a planning permission can begin.
Commonly, these conditions require approval of specific details not known at the application stage, such as details of construction methodology and the carrying out of a remediation scheme.
Pre-commencement conditions are very powerful things; unless they are satisfied, any works done to implement a planning consent won’t count and the consent will not be deemed to have been legally implemented. This could be very significant for a developer in the case of works done near to the expiry date of a planning permission, as it could render the works done unlawful and potentially subject to enforcement action.
What are the changes?
Under the new rules, Local Authorities (and the Secretary of State) cannot grant a new planning permission or modify an existing planning permission subject to a pre-commencement condition without the applicant’s prior written agreement.
However, an exception has been created so that Local Authorities (and the Secretary of State) can impose pre-commencement conditions without express consent from the applicant where they have given prior written notice to an applicant of their intention to do so. This notice must contain the text of the proposed condition and reasons why it is required as a pre-commencement condition.
Applicants then have 10 working days (beginning on the day after the date the notice was given) to provide a “substantive response” that either agrees or objects to the proposed condition, or provides comments upon it.
Where an applicant fails to provide such a substantive response within the 10 working day time frame, the applicant is deemed to have consented to the imposition of the proposed pre-commencement condition, so planning permission can then be granted subject to it.
If the applicant objects to the imposition of the pre-commencement condition, the Local Authority can:
Grant planning without the relevant pre-commencement condition;
- Seek written agreement to an alternative condition; or
Refuse to grant permission (where it considers that the disputed condition is necessary to make the development acceptable in planning terms).
Applicants should keep a careful eye out for these notices during the application process and ensure that any notices received are dealt with promptly within the 10 working day time frame, to avoid giving deemed consent to a pre-commencement condition that could potentially be negotiated or even objected to.
Even where an applicant is agreeable to the imposition of a pre-commencement condition, it is still important that they make sure the Local Authority has followed the correct notice procedure prior to issuing the permission, as failure to do so could give grounds for judicial review by third parties.
Although this change gives developers an opportunity to negotiate the draft permission from a commercial angle, potentially protracted negotiations could result in delays to permissions being issued or indeed the application being refused altogether (with the developer then being left facing the uncertainties of the appeal process), so it remains to be seen whether it will lead to a noteworthy reduction in the number of pre-commencement conditions.
Developers may instead consider accepting the condition (albeit under protest) and then submitting a s.73 application after the permission is granted, in an attempt to either remove the condition altogether or (perhaps more likely) to vary the timescales for compliance (which at least gives them the comfort that the original planning permission is secure).
In potentially contentious cases, we may also see Local Authorities attempting to “sneak” pre-commencement conditions into Section 106 Agreements in an attempt to circumvent the s.73 risk (as there is no automatic right for a developer to apply to vary a Section 106 Agreement until 5 years after the original Agreement was signed).