Use of Planning Conditions Set to Change
It is widely agreed that the use of planning conditions is an essential part of the development control process, often making otherwise unacceptable development acceptable and helping to achieve sustainable development. However, developers are all to often frustrated by LPA’s routinely attaching unnecessary and unreasonable conditions to planning permissions and consents. The approval of these conditions, particularly ‘pre-commencement’ conditions which need to be formally discharged before work can start on site, can sometimes cause costly delays.
The Government recognises the inappropriate use of conditions as a problem, and has responded by introducing a power in the Neighbourhood Planning Bill to ensure that pre-commencement conditions can only be used with the agreement of the applicant. Planning Practice Guidance already clarifies that it is best practice for a LPA to agree to proposed conditions with an applicant before a decision is taken, and as early in the planning process as possible. The Bill will take this one step further by giving this best practice guidance a statutory footing for the first time.
Alongside this, the Government issued a consultation paper in September 2016 entitled Improving the Use of Planning Conditions which sought views on how the process of prohibiting the use of pre-commencement conditions without the agreement of the applicant would operate, and the potential for a wider application of the proposed powers in the Bill to prohibit conditions in targeted circumstances. The Government has now promptly issued their response to this consultation exercise (December 2016).
In terms of the pre-commencement conditions process, the Government remains of the view that it should be the responsibility of the LPA to chose the most appropriate time to seek agreement of the applicant to any pre-commentment conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. In order to avoid undue delays in the process, the Government is proposing a default period of 10 working days, after which an applicant’s agreement will be deemed to be given (in addition to the ability for local authorities to agree a longer timescale with the applicant). The default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and sought the agreement of the applicant.
The Government anticipates that this process will reduce the workloads of authorities once permissions have been granted by reducing the number of pre-commencement conditions that have to be discharged. Whilst this may well prove to be the case, the introduction of this default notice period could place additional pressure on LPA’s at the application stage. The Government stresses the importance of ensuring that the default period does not impede the timely determination of planning applications, and advises that local authorities should therefore give careful consideration to how this period fits with the statutory determination deadlines. In practice, requiring Planning Officers’ to give an applicant two week’s notice if a pre-commencement condition is to be imposed and still determine that application within the eight week (or 13 week) statutory determination period, will effectively reduce the time they have to consider the application to six weeks. In theory, this should speed-up the determination of applications. However, with Planning Departments’ under continued pressure to meet deadlines (with limited resources), the unintentional outcome of this default period may be that we see an increase in the number of applications refused as officers’ find that they have insufficient time to complete this additional stage of the determination process within the target date.
The second part of the consultation proposed greater clarity for LPA’s and applicants about a number of types of conditions which Planning Practice Guidance identifies as not meeting the 6 policy tests in paragraph 206 of the National Planning Policy Framework. The Government is proposing to introduce secondary legislation to expressly prohibit each of the following six types of conditions:
1. Conditions which unreasonably impact on the deliverability of a development – e.g. disproportionate financial burden
2. Conditions which reserve outline application details
3. Conditions which require the development to be carried out in its entirety
4. Conditions which duplicate a requirement for compliance with other regulatory requirements – e.g. building regulations
5. Conditions requiring land to be given up
6. Positively worded conditions requiring payment of money or other consideration
In light of consultation responses, a further consultation of the draft regulations will be carried out providing greater clarity on the detail on the conditions proposed to be prohibited. Updated guidance will be published in due course.
The Neighbourhood Planning Bill is currently awaiting its Second Reading in the House of Lords on 17 January 2017 and we will keep you up to date on its progress and the aforementioned secondary legislation. In the meantime, if you have any questions regarding the use of planning conditions, please feel free to contact one of the Firstplan team.
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