To Pre-Commence or not to Pre-Commence?

On 1 October 2018, the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the 2018 Regulations) came into force. The 2018 Regulations apply to pre-commencement conditions imposed on any planning permission which is granted on or after 1 October 2018.

The position under s100ZA of the Town and Country Planning Act 1990 is that a local planning authority is prohibited from granting planning permission that is subject to a pre-commencement condition without first obtaining the consent of the applicant. The 2018 Regulations provide an exception to this.

The 2018 Regulations require the local planning authority to serve notice on the applicant if it intends to grant the planning permission subject to a pre-commencement condition. The notice must specify (i) the wording of the pre-commencement condition; (ii) full reasons for the proposed condition; (iii) full reasons why the proposed condition is a pre-commencement condition; and (iv) that any substantive response must be received within 10 working days from the day after the date the notice is given.

The Regulations do not detail what form the notice must be in and there is currently no guidance providing any detail other than it must be in writing and cover the above points. It is likely that in time local planning authorities will develop a standard form of notice but for now the position is unclear as to when a notice will be validly served under the 2018 Regulations and there is the risk of different authorities adopting largely different approaches.

The applicant will have 10 working days beginning with the day after the date on which the notice is given in which to provide a “substantive response”. The 2018 Regulations provide a very loose definition for this, being a response which either states that the applicant does not agree with the proposed condition or provides comments on the proposed condition. There is no obligation on the applicant to provide any explanation for the reasons behind its response.

Failure to provide a substantive response within this time period will mean that the applicant is deemed to have consented to the pre-commencement condition and the local planning authority will be able to determine the planning permission and impose the pre-commencement condition without the applicant’s express approval. However, if the applicant does provide a substantive response, the local planning authority will be bound by S100ZA and must obtain the applicant’s approval. Developer’s will need to be extremely aware of the short timeline in which to provide a response to avoid being granted a planning permission which leaves them encumbered with costly and/or time consuming pre-commencement conditions.

The planning permission may not be determined prior to the 10 working day period unless a substantive response has been received or there is a written agreement between the applicant and the local planning authority to the terms of the proposed pre-commencement condition.

The government’s desired impact of the 2018 Regulations is to speed up the planning process however it will have to be seen if this outcome is achieved or if just results in a large number of appeals and refusals.