The Government has introduced the principle of deemed discharge into the Town and County Planning Act 1990 (by way of the Infrastructure Act 2015) and consolidated and reissued the Town and Country Planning (Development Management Procedure) Order 2015 (the "DMPO 2015") to provide the detail on how deemed discharge works in practice. The new legislation comes into effect on 15 April 2015.
The new deemed discharge provisions acknowledge and seek to address unnecessary delays caused by the discharge of planning conditions that can prevent developments with planning permission from commencing. Following a consultation last year the Government considered that new measures should be introduced to give greater certainty for all parties around when decisions could be expected.
A Local Planning Authority ("LPA") is required to determine an application for approval of a condition within 8 weeks following receipt of the application (or such other longer period as may be agreed between the applicant and the LPA in writing). If an LPA fails to determine within 8 weeks or the agreed period a right of appeal accrues.
In respect of certain types of conditions the deemed discharge route is available under the DMPO 2015 for applications made on or after 15 April 2015. To benefit from the deemed discharge procedure the applicant must first serve the LPA with a 'deemed discharge notice' no sooner than 6 weeks after the application for the discharge has been received by the LPA (or shorter period if agreed).
The deemed discharge notice must provide details of the application submitted, identify the planning condition to which it relates and the date on which the deemed discharge is to take effect, which must be no earlier than either 14 days after the deemed discharge notice was received by the LPA or the end of the 8 week determination period (whichever is later). If the deemed discharge notice is being served after the 8 week determination period has elapsed the notice must also specify that no appeal has been made against the application for non-determination.
Deemed discharge takes effect on the date specified in the deemed discharge notice unless the LPA has given notice to the applicant of their decision regarding the details of the condition before that date.
This procedure cannot, however, be used to discharge all types of conditions or planning applications:
- All conditions attached to development that is subject to an Environmental Impact Assessment
- All conditions attached to development that is likely to have a significant effect on a qualifying European site
- Conditions designed to manage flood risk
- Conditions requiring the approval of details for outline planning permissions required by reserved matters
- Conditions attached to development within Sites of Scientific Interest
- Conditions relating to the investigation and remediation of contaminated land
- Conditions relating to investigation of archaeological potential
- Conditions requiring a Section 106 or Section 278 Agreement is entered into
- Conditions attached to the grant of permission under a Development Order (Special Development Order, Local Development Order, Neighbourhood Development Order) or planning permission granted in relation to Simplified Planning Zone or Enterprise Zone
- Crown development or government authorisation
While at first glance the deemed discharge of conditions promises to cut through 'red-tape' on reading the detail of the legislation, many types of condition and certain types of planning applications do not benefit from these new provisions. More straightforward planning permissions may be assisted but for the more complex schemes (EIA development) and the more controversial conditions (contamination, habitats, archaeology) appealing a condition remains the only route where an LPA fails to issue its decision.
From a local authority perspective this may create a greater administrative burden in the monitoring and logging of dates and put a greater strain on already limited resources.
Deemed Discharge at a Glance:
1. Submit an application in writing to the LPA for any consent, agreement or approval required by a condition attached to a planning permission with the requisite supporting information.
2. Serve a 'deemed discharge notice' on the LPA no sooner than 6 weeks after the application to discharge the condition is made.
3. Deemed discharge takes effect if the LPA has not notified the applicant of its decision within 14 days of receiving the deemed discharge notice.
Deemed Discharge at a Glance:
There are exceptions from this procedure for most sensitive types of conditions (EIA conditions and SSSI sites) as well as for conditions relating to land contamination, highway safety and other forms of environmental mitigation and remediation (e.g. in relation to noise and air quality), archaeology investigation and other historic assets. This procedure cannot also be used for conditions attached an outline planning permission requiring approval of reserved matters or to circumvent conditions requiring that a planning obligation or highways agreement be entered into.