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Pre-commencement conditions: New rules to come into force on 1 October 2018

Planning conditions enable development which would otherwise be unacceptable in planning terms to proceed. They are an important means of ensuring that development is regulated properly. A pre-commencement condition (also known as a 'Grampian' condition) is a condition imposed on a planning permission which must be complied with before the development permitted by the planning permission begins. Whilst pre-commencement conditions are useful for Local Planning Authorities (LPAs), they prevent works on site starting until they are discharged. Therefore, it is important that they are only imposed where justified to prevent unnecessary delays to the delivery of development.

The Neighbourhood Planning Act 2017

On 1 October 2018 the Neighbourhood Planning Act 2017 (Commencement No 5) Regulations 2018 will trigger section 14 of the Neighbourhood Planning Act 2017, specifically subsections 14(1), (3) and (4). This in turn will implement s100ZA (4) to (13) of the Town and Country Planning Act 1990.

The effect of this is that from 1 October 2018, the way in which pre-commencement conditions work will change. LPAs must obtain the written agreement of the applicant before imposing pre-commencement conditions on a planning permission. In addition, the LPA must notify the applicant in writing of its intention to impose a pre-commencement condition.

If the LPA gives notice in writing to the applicant and the applicant does not respond to the notice before the end of the period of 10 working days (beginning with the day after the date on which the notice is given) then it may proceed to impose the pre-commencement condition.

How are developers and LPAs effected?

In practice, these provisions will allow developers to refuse the imposition of pre-commencement conditions where they do believe they are unwarranted or impractical. While this will give developers an opportunity to negotiate the draft permission from a commercial perspective it also means that potentially protracted discussion and negotiation may be necessary before permission can be granted. In addition, applicants will need to be careful that any notices from the LPA are dealt with quickly to avoid deemed consent to the pre-commencement condition being given. A side effect may be that developers may feel forced  to accept the proposed pre-commencement conditions immediately to avoid refusal of the application where the LPA disagrees with the developers view.

LPAs will be subject to an additional burden as a result of this extra step in the process. However, they are already subject to requirements under the Town and Country Planning (Development Management Procedure) (England) Order 2015 to include in their decision notices the reasons for imposing a condition. This means that LPAs should adapt to the new rules quickly as the changes are largely procedural.

The Government’s intention was that the Act would reduce the time lag between planning permission being granted and work starting on-site. It will be interesting to see how effective this mechanism is or whether it will simply result in a delay in the issue of the planning permission itself.

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