The government recognises the need to speed up the planning system, something which has been on the agenda for sometime. Ordinarily legislation put forward, whilst seemingly well intentioned, tends to add an additional layer of bureaucratic red tape which stifles development in the long run.  The government now seeks to tackle the use of pre-commencement conditions and is seeking feedback on draft regulations.

Planning conditions are required to make developments acceptable and should only be imposed in circumstances where they are necessary, relevant to the planning / the development, enforceable, precise and reasonable in all other respects.[1] Pre-commencement conditions can often cause developers a number of problems, delay and money being the most obvious ones.

Dealing with pre-commencement conditions

The draft regulations provide a system for dealing with pre-commencement conditions whereby intended conditions are shared with the applicant at the earliest opportunity in the form of a notice.  The applicant then has four options:

(1) Provide written agreement to the proposed conditions  – planning permission can then be granted.

(2) Confirm they do not agree with the proposed pre-commencement conditions set out in the notice. The Local Planning Authority (‘LPA’) can then either (i) grant planning permission without the pre-commencement condition, (ii) seek an alternative pre-commencement condition, or (iii) refuse permission.

(3) Provide comments, explaining why such a condition is inappropriate or cannot be imposed. This may lead to further negotiation with the LPA resulting in a revised notice being served.

(4) Do not respond. If no response is received by the LPA by the date set out in the notice then planning permission will be granted including the conditions set out in the LPA’s notice.

In terms of timescales a period of 10 working days for applicants to respond to the notice is being considered to avoid undue delay in the process of determining an application. It is therefore hoped that this can be a swift process.

Will this improve planning conditions?

The proposal is encouraging in the sense that  it provides for more co-operation and discussion between applicants and the LPA, but to be able to openly engage with this system LPAs will need sufficient time and resources. The consultation note also stipulates that it is possible for agreement to be reached at any stage and that there is no time limit in reaching agreement outside of the notice period.  If the regulations as currently proposed come into force it is hoped that the LPA would actively engage with the applicant and not automatically resort to (2) (iii), as set out above, without some further form of communication between the parties. Based upon the current wording of the draft regulations applicants would be well advised to follow option (3) rather than (2) in the circumstances. An applicant simply stating they do not agree with the proposed conditions does not provide the LPA with any reasoning as to why, and to be able to persuade the LPA of the suitability of any such condition a substantive response would be more advantageous.

If you have any comments to make on the proposed Town and Country Planning (Pre-commencement Conditions) Regulations 2018 then comments must be made by 23:45 on 27th February 2018. You can respond by completing the following online survey

Sarah-Jane is an Associate in our planning team.  She advises Housing Associations and Developers on planning conditions, If you have any questions please get in touch by telephone 01872 265100 or by 

[1] Paragraph 206 National Planning Policy Framework