New rules on pre-commencement conditions

From 1 October 2018 new rules come into effect in England affecting the use of pre-commencement planning conditions. Architects, surveyors and small house builders in particular will need to be aware of the new procedures, as well as others involved in securing planning permission and in development.

Pre-commencement planning conditions have long been popular with councils keen to ensure further detail they want control over are submitted to them for approval.  Developers have complained the procedure stalls progress on development, especially when the matters the subject of the condition are not critical to the early stages of work on site, for example, why should ground preparation work be held up by a condition requiring details of the roofing material for a house.

New regulations* now require councils to seek the agreement of applicants to any pre-commencement conditions they think are necessary. In practice these may mostly be sorted out by informal agreement. Alternatively, there is a formal process which can be instigated.

The council can serve formal notice of its intent to impose a pre-commence condition and the applicant then has ten days, and no more, in which to respond. Failure to respond (in time) will be taken as acceptance of the condition. The other three options open to an applicant are

1. Provide written confirmation of agreement

2. Provide written comments, which will be a trigger a round of negotiation after which the council will need to serve a further notice, and so on until either an agreement or an impasse is reached, or

3. Provide written confirmation they do not agree.

In the event of no agreement being reached the council must then decide whether to

– Grant permission without the pre-commencement condition

– Seek written agreement with the applicant to an alternative form of words, or

– Refuse to grant permission.

The last point in particular is worth noting. Careful judgement will sometimes need to be exercised over how best to respond to the notice.

If in the short term it seems better to accept the condition to get the permission, it will still be possible to return later to seek to pursue an application without the condition. If this scenario seems likely then it is probably better to stay silent in response to the notice than to say something which appears to convey acceptance of it, because that could later be used against you.

You can find more information and guidance on the use of pre-commencement conditions as part of the government national planning practice guidance, via the following link:

https://www.gov.uk/guidance/use-of-planning-conditions#the-use-of-pre-commencement-conditions

 * The Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018