So an LPA cannot impose a condition in the face of a substantive objection from the applicant.A follow up question from me.All of the press and discussion around this has been around traditional pre-start conditions e.g. green field housing development. Reviewing pre-commencement conditions From October 2018, amendments to legislation* were introduced that require local planning authorities to serve notice on applicants for any pre-commencement conditions that it wishes to impose, where this has not already been agreed in writing, unless a specific set or circumstances apply. The section would clearly apply to any such condition – but I don’t think that’s the full effect of the section when you break it down. The Regulations were made under powers given in the Neighbourhood Planning Act 2017. As it's a new permission, presumably the new procedure should be followed?If the LPA forgets to follow the new procedure for pre-commencement conditions carried over, are those conditions invalid or is the planning permission invalid (which would be very unfair)? 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. If no substantive response is received from the applicant they will be deemed to have consented to the pre-commencement condition. UK on the acquisition of High Constellation Wind Farm from Blue Energy. What is not clear in the Regulations, and only advanced in the NPPG as far as I can see, is what happens where the applicant disputes the pre-commencement condition within the 10 day period. Well, the word ‘any’ answers this question. A pre-commencement condition must not be imposed on the grant of permission (other than a grant of outline planning permission within the meaning of Section 92 of the 1990 Act) … A pre-commencement condition is defined in section 100ZA(8) of the Town and Country Planning (Pre-commencement Conditions) Regulations 2018, as a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92 of the 1990 Act) which must be complied with: Condition two of the consent required details and samples of building materials to be provided to and approved by the Council before work commenced. Reason: Pre commencement condition to ensure the effective investigation and remediation of contaminated land sites and in the interests of health and safety and the quality of the environment in accordance with paragraph 170 of the NPPF and Policy BN9 of the West Northamptonshire Joint Core Strategy. Under the Pre-commencement Conditions Regulations 2018, which came into force on 1 October 2018, we now need to seek the written agreement of applicants to any pre-commencement conditions attached to permissions granted in or after that date.Pre-commencement conditions are those that need to be complied with … We work hard to make sure Burges Salmon is a great place to work. A time limit of longer than 10 working days can be agreed in writing by the applicant and the LPA. In effect, such conditions prevent any development on a site commencing until those pre-commencement conditions have been complied with … Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. The LPA reviews the proposed development details, and grants consent with a pre-commencement condition requiring that an AIA be provided. Pre-Commencement Conditions & obtaining applicant consent: Archaeology. "No development shall commence prior to..." etc But looking at the statutory definition in 100ZA there might be a problem in the drafting of (8)a - copied in full below.I think the intention of (8)a was to prohibit conditions which began with the words “before any building or other operation comprised in the development is begun” - or any analogous phrasing. Pre-commencement conditions are those conditions on a planning permission which must be fulfilled  before work starts on site or before the use of land changes. I don't understand Richard W's concern. Every planning permission must contain a planning condition limiting the time within which the permission can be implemented. Construction a roof and laying roof tiles seems to me to very clear be a ‘building or other operation comprised in the development’ of a house.You might ask, does the section apply to all such operations comprised in the development or only the first operations comprised in the development – i.e. Clearly not the original intent, but perhaps an unintended consequence of the drafting. It does also mean though, that more extensive discussion and negotiation may be necessary before permission can be granted. If the applicant does not agree to the proposed pre-commencement condition, the LPA could amend it, remove it, or make it a post commencement condition. It seems to me that the Government intended to address s100ZA of the 1990 Act to a scenario which only relates to ‘pure’ pre-commencement conditions which prevent the commencement of development. )My concern is the same as one of you - the unintended consequences of the stat def of 'pre-commencement condition' - without a stat def common sense would have at least had a chance - with one we are bound to follow it. However, I’m not sure that this remedy is the panacea (I’m trying to resist the temptation to coin the term “planacea”, oh..). Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296 Overlapping planning permissions: which one is valid? However, I would be interested to hear what other people think about this. For example, a pre-commencement condition to supply details of surface finishes could be qualified to allow them to be supplied before any above-ground works are commenced. notice that a substantive response is to be received no later than the last of the period of 10 working days beginning with the date after the date on which the notice was given. The Regulations require the LPA to go through the notification procedure if they intend to impose a pre-commencement condition. If none of these options would make the development acceptable, planning permission will be refused. It seems that the requirement to serve a formal 'pre-commencement notice' applies in all cases where the LPA intends to impose one or more pre-commencement conditions. The recent High Court case of R (Howell) v Waveney District Council [2018] EWHC 3388 is a helpful reminder that breaching a condition going to the “heart” of a permission renders implementation of that permission unlawful. The imposition of unnecessary pre-commencement conditions certainly does not help, but these new rules may not be sufficiently robust to improve the overall timeframe for the development process. However, developers can find themselves entangled by a web of conditions that they must discharge before they are permitted to even commence development. necessary to make the development acceptable in planning terms. You are the landowner for Scenario 1. The case involved a planning permission, granted in 2006 subject to conditions, to make extensions to two Victorian terrace houses in Hackney to provide four residential units (2 x 2 bed and 2 x 4 bed flats) and additional space for a synagogue. Under new Regulations which came in to force on 1 October 2018, applicants are required to provide their written consent to pre-commencement conditions unless exclusion applies. The legislation allows for exclusions to this to be made, … These will commonly be in relation to: Details that need to be confirmed before the permission can be implemented, known as 'pre-commencement conditions'. Pre-commencement conditions Planning permission (and other types of consent) may be subject to conditions that require further details to be submitted for the approval of the local planning authority before the development is commenced. Clearly, what works in each case will depend upon specific circumstances. The firm has advised leading global renewable energy developer BayWa r.e. A recent case acts as a useful reminder that planning conditions which seek to prevent the commencement of development should not always be read literally, but with “a dose of reality”. The basic position will be that planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition. Given that S100ZA(5) of the TCPA 1990 is in the form of a prohibition, then the prohibition applies unless disapplied by the Regulations. Irrespective of the original intent of this section, doesn't this in effect bite on any condition requiring prior approval of any element of a development 'before any other operation comprised in the development is begun'.The statutory definition is that:(8)“Pre-commencement condition” means a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with—(a)before any building or other operation comprised in the development is begun, or(b)where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.Consider this simple condition, that I think is loosely the sort of condition that is now expected: “Details of the roof tiles shall be submitted to and approved by the LPA prior to their use in the construction of the roof.” This might appear on a permission for a new house, for example.Applying the statutory definition, the question is simply whether the condition must be complied with “before any building or other operation comprised in the development is begun”. A pre-commencement condition for this purpose is one which is imposed on a grant of full planning permission (but not an outline permission) and which must be complied with either before any building or operation comprised in the development is begun, or (in the case of change of use) before the material change of use occurs. These issues are all counterproductive to the government's aim of speeding up delivery of housing. Pre-commencement conditions are those conditions on a planning permission which must be fulfilled before work starts on site or before the use of land changes. Name must have at least 0 and no more than 256 characters. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. Some conditions may require approval by the planning authority before development commences (such as agreeing the colour of materials), others can be discharged during the course of development (for example limits to site operatinghours). Introduction: The process of assessing, identifying and removing archaeological remains from a site threatened by development has been an integral part of the planning process since the drafting and adoption of PPG16 in 1990. The second of the statutory instruments to have been introduced, the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 [v], clarifies the procedural requirements for local authorities to request permission to impose a pre-commencement condition, where this has not already been agreed in writing. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. The new regulations only apply to pre-commencement conditions for planning permissions granted or modified on or after 1 October 2018. A fee is required for discharging conditions. Conditions imposed on a planning permissions are set out in the decision notice. This becomes more apparent if one accepts that any particular development may comprise more than one 'type' of development i.e. However the actual drafting/construction of s100ZA(8)appears to leave open the scenario that it relates to any change of use, or material building or other operation included within the development for which consent was granted i.e. From October 1, 2018, under section 100ZA of the Town and Country Planning Act 1990, planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (except in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the “Regulations”)). It went on to state, “The developmen… It was originally intended mainly for fellow planning professionals, but all are welcome to read it. It relates the construction of the definition of 'pre-commencement condition' as provided for by s100ZA(8) of the 1990 Act which includes any change of use, or material building or other operation comprised in the development for which consent was granted.Dustin. There has been a series of cases considering the effect of breaching a condition on implementation: 1. Either the condition is a pre-commencement condition - in which case it will have been submitted to the applicant for consideration prior to a Decision, or it isn't, in which case it won't. Too many Anonymouses (Anonymi? The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. Either way it seems to me that there will be an appeal on the necessity of the condition. This means crucially that any pre-commencement planning conditions must be complied with before works commence on site. In parallel, an application was also submitted to formally discharge the pre-commencement conditions which included materials, landscaping, flooding and car parking. Please refer to the fees schedule. The pre-commencement conditions were not central to the development and therefore did not render the development unlawful. From October 1, 2018, under section 100ZA of the Town and Country Planning Act 1990, planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (except in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the “Regulations”)). The Regulations should also encourage developers to consider the choice between the: Developers will need good professional input to negotiate conditions precedent and advise on whether it is tactically advisable to accept such a condition, risk appeal or adopt a practical approach in any given scenario. Message must have at least 0 and no more than 1024 characters. Pre-commencement conditions - new planning rules from 1 October 2018. Work on the basis that development is commenced once (with the first operation or COU), safe in the knowledge that's what everyone else is doing too. Otherwise any works done to implement in accordance with section 56(4) may not be lawful and may then be subject to challenge by the local authority. Doonin Plant Ltd v Scottish Ministers [2011] CSOH 3 UK on ten-turbine Scottish wind farm acquisition, Court of Appeal case provides guidance on application of NPPF paragraph 11(d), Burges Salmon advises Bio Capital on refinancing of UK anaerobic digestion portfolio. Planning permission may be granted subject to a pre-commencement condition without the applicant’s written agreement, if the applicant has been notified of the intention to impose a pre-commencement condition and has not responded by the date specified in the notice. A major contributory factor to that delay is identified as an over use of pre-commencement or pre-development conditions. The NPPG says that the LPA must amend the trigger, not use the condition (if not necessary etc. The value of the Contact phone number field is not valid. Any operation comprised in the development is caught by the section isn’t it? Conditions should only be imposed that satisfy the six tests set out belowin Chapter 3.Statutory consultees and applicants are also able to use this document as a reference when, for example, drafting suggested conditions. Pre-commencement conditions: These conditions need to be formally discharged prior to construction and or development starting on site; Pre-occupation conditions: These conditions need to be formally discharged prior to the development being occupied Fees. Local Planning Authorities (LPAs) have to give notice of their intent to attach a pre-commencement condition to a planning permission. The Scottish position. The notice must set out: the text of the pre-commencement condition, the full reasons for the condition to be pre-commencement condition. What about the situation where planning permission was granted prior Section100ZA coming into force and then a s73 variation is approved after it came into force only varying some conditions (typically minor changes to drawings)? If not, the permission expires. This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. Conditions which are fundamental to the development are a more problematic category. Conditions. enforceable and reasonable in all other respects. The need to agree pre-commencement conditions with applicants will not prevent local planning authorities from imposing conditions that are necessary, the government says, while in the unlikely event that an applicant refuses to agree to a pre-commencement condition that is deemed necessary (e.g. If it becomes common practice for applicants to disagree to pre-commencement conditions, we may find that there are significant delays to the grant of planning permissions, an increase in refusals and consequently more appeals. 5 Pre-commencement conditions are planning conditions which prevent any development authorised by a planning permission from taking place until the condition has been formally discharged, for example, the condition may require the approval of detailed aspects of the development. This is an intriguing thought, but I somehow have a feeling that simply repeating the previous pre-commencement conditions in these circumstances wouldn’t necessarily trigger the need to seek agreement in respect of those conditions. Clearly the LPA would only want to do so if there was a good reason for it, and after all the applicant clearly has the right to appeal, with costs if the LPA couldn't substantiate their case. as per the 6 tests) or refuse if it is necessary to have the condition to make the development acceptable. Therefore, the permission remained ‘live’. The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. The concern raised by Richard is similar to the one raised by me in my comment on 3 October 2018 at 10:06 above. For more information about the issues in the article please contact Cathryn Tracey or Gary Soloman. (And given that ‘pre- commencement’ was the real target of this section and ‘commencement’ is already defined in the Act why didn’t they just refer to this…? Breaches of pre-commencement conditions dealing with more trivial matters are less likely to be caught. This means it is vital for developers to comply with the strict timetable that the government justified as necessary in order to avoid ‘undue delay’. not only conditions which prevent the 'commencement' of development. It sees the need to reduce 'the number of unnecessary and otherwise unacceptable conditions attached to permissions’ and ‘to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.' The LPA is able to decide at what point during the determination process it seeks the applicant's agreement to a pre-commencement condition. Pre-commencement conditions of this sort are commonly used throughout the country, and I think it is fair to say that most developers would be happy to comply with them, not least because the retention of trees is likely to enhance the visual appeal of … The legislation allows for exclusions to this to be made, but, as of yet, no exclusions have been prescribed. agreeing to pre-commencement conditions being imposed, allowing them to provide this information at a later date so as not to risk delaying the grant of planning permission. Potentially this could slow down the process of obtaining planning permission. It sees the need to reduce 'the number of unnecessary and otherwise unacceptable conditions attached to permissions’ and ‘to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.'. Scenario 5: Detailed AMS requested by LPA at planning; intent to attach performance condition. There is no mention anywhere of an AMS as a pre-commencement condition. These Regulations give applicants an opportunity to have more input into draft permissions and hopefully when the permissions are issued they will be in manageable shape from a commercial perspective. It's a bit annoying that applications due to be determined on or around this date appear to be being delayed because of this extra step, but there we are.