'Cautious welcome' from developers for government's changes to planning conditions, says expert

A consultation response published by the government just before Christmas confirms the extent to which the use of pre-commencement conditions will be restricted, and certain other planning conditions banned altogether. The measures will be introduced as part of the Neighbourhood Planning Bill, which is currently before parliament; and in related regulations to be published in due course.

Planning law expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com, said that "overly restrictive and unnecessary" pre-commencement conditions were unpopular with those developers trying to implement a planning permission in a timely manner and carry out development.

"Therefore, the government's decision to only allow pre-commencement conditions that have first been agreed with the applicant and to preclude the imposition of certain other conditions is to be cautiously welcomed by developers," she said.

"The changes will certainly focus minds; albeit developers will clearly need to act reasonably and accept necessary pre-commencement conditions and also try and reach agreement with the local planning authority (LPA) in respect of the proposed pre-commencement conditions put forward by the LPA, otherwise the LPA can refuse planning permission. Early engagement between the parties would be advisable to avoid delay in granting planning permission," she said.

By imposing pre-commencement conditions on applicants for planning permission, LPAs can require a developer to take certain actions before a prescribed part of the development can go ahead. Once in force, the Neighbourhood Planning Bill will prevent LPAs from adding pre-commencement conditions without first obtaining the applicant's written consent. The new power will address the "urgent need to tackle the inappropriate use" of such conditions, according to the government.

The government decided against the introduction of a formal dispute resolution procedure for use by LPAs and developers unable to reach agreement on the use of pre-commencement conditions. Such a procedure would "add a further formal step to the process which would be likely to cause delays", and could actively discourage meaningful early discussions, according to its response.

"This could mean that if tensions do arise between developers and LPAs that they cannot resolve between themselves then either the developer would need to accept the pre-commencement condition, or risk the authority refusing permission," Lindsay said. "The consultation indicates that the government intends to impose a 10 working day time frame in which developers would have to approve or dispute proposed conditions and after that period the conditions would be deemed to be agreed. Developers will need to be alive to this and also watch exactly how the government introduce the timeframe proposals in detail and what the position would be where there remains disagreement after this period."

"Although, the consultation does indicate there is likely to be an ability to extend the 10 working day period," she said. "Nevertheless, until the detailed provisions are issued by the government there will remain concerns that where a developer accepts the conditions in the interests of securing consent, whether their ability to then challenge unreasonable conditions through the section 78 appeal route will be negatively impacted"

The Neighbourhood Planning Bill will also create a power to prohibit the use of certain other types of planning conditions that do not meet the tests set out in the National Planning Policy Framework. These conditions will be set out in secondary legislation. They are conditions which unreasonably impact on the deliverability of a development, such as disproportionate financial burdens; conditions which reserve outline application details; conditions which require the development to be carried out in its entirety; conditions which duplicate other regulatory requirements, such as building regulations; conditions requiring land to be given up; and "positively-worded" conditions requiring payment of money or other consideration, according to the consultation response.

Although developers suggested a number of other possible prohibitions in response to the consultation, the government decided against expanding the list from its original six. However, it intends to "keep this matter under review".

The changes are not intended to restrict the ability of LPAs to make "otherwise unacceptable development acceptable", according to the government. It has stressed that LPAs will be entitled to refuse planning permission "in the unlikely event that an applicant refuses to accept a necessary pre-commencement condition". This will "maintain appropriate protections for important matters such as heritage, the natural environment, green spaces, and measures to mitigate the risk of flooding", it said.