Pre-commencement conditions are powerful things: unless they are satisfied, then any works done to implement a planning consent will not count, and the consent will not have been properly implemented. If this occurs near to the expiry date, there is a risk that the consent will expire without having been implemented, and any works done on site deemed to be unlawful.
The Government is currently consulting on proposals to improve the use of planning conditions by clarifying when a pre-commencement planning condition can be imposed without the written agreement of the applicant.
Old and new consultations
The government has been cogitating over 'improving the use of planning conditions' for the last couple of years. In its response to the September 2016 consultation, it proposed requiring local planning authorities ("LPAs") to seek the agreement of the developer to any pre-commencement conditions. In doing so, it sought to 'place best practice on a statutory footing' in order to save time by not having to discharge any pre-commencement conditions before development could commence.
It aimed to help address the "urgent need to tackle the inappropriate use of ‘precommencement’ conditions," by introducing a power in the Neighbourhood Planning Act 2017 to ensure that these conditions can only be used with the agreement of the applicant.
Following that consultation, the Neighbourhood Planning Act 2017 introduced section 100ZA into the Town and Country Planning Act 1990 ("TCPA"). When brought into force, sections 100ZA(4) (5) and (6) of the TCPA will prohibit the grant of planning permission subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition except in prescribed circumstances. The Government issued a new consultation paper on 30 January 2018 seeking views on draft regulations which set out the circumstances when a pre-commencement condition can be imposed without the written agreement of the applicant.
Essentially, this would only be possible where no 'substantive response' (i.e. written comments or objection) is given by a developer within 10 working days of a notice from the LPA setting out the terms of a proposed precommencement condition. An application cannot be determined before the 10 working day period has passed, unless agreement is given or a substantive response received by the LPA. The notices relating to the proposed conditions must specify reasons for imposing them, including why such a condition must be a precommencement condition.
What could this mean for developers?
It is hard to see how this will streamline the granting of planning consents, although it may reduce the number of precommencement conditions. Whilst the 10 working day period would require prompt action from the developer, if there is a late proposal by the LPA of such a condition, it may mean that the application has to be carried over to a later committee date, which could be an issue for developers.
Clearly, well-advised developers will simply fail to agree to any onerous Grampian-type conditions. What happens then? The LPA could refuse consent on the grounds that, in their view, consent cannot be granted without such a condition, leaving the developer to appeal the refusal. Alternatively, the LPA could grant the consent subject to such condition, leaving the developer to appeal against the condition, apply under section 73 of the TCPA to vary the condition, or apply for a new consent altogether. There is nothing new here.