Wednesday, 26 September 2018

Pre-commencement conditions

The legislation governing the imposition of pre-commencement conditions (often referred to as ‘conditions precedent’) comes into force next week, on the first day of October.

As from that date 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 (other than in the circumstances described below, which are set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 - 2018 No. 566).

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.

The government’s hope is that LPAs and applicants will discuss conditions (including any pre-commencement conditions) during the processing of the application and before a final decision is made. They expect the LPA to share with the applicant any draft pre-commencement conditions at the earliest possible opportunity. If the applicant confirms their agreement to a pre-commencement condition in writing, then the pre-commencement condition can be imposed, and the procedures set out in the Regulations do not apply.

Where an LPA has not been able to obtain written agreement to a pre-commencement condition it wishes to impose, it may serve a notice under the Regulations, which must include the text of the proposed pre-commencement condition, the full reasons for the proposed condition (which must be set out clearly and precisely), the full reasons for its being made a pre-commencement condition (which must also be set out clearly and precisely), and finally, a notice that any substantive response must be received by the LPA within 10 working days from the date on which the notice is given.

In the absence of a substantive response from the applicant, the LPA may impose the pre-commencement condition without the written agreement of the applicant. (The process is set out in the Regulations and also in the online Planning Practice Guidance.)



Anonymous said...

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. The Regulations require the LPA to go through the notification procedure if they intend to impose a pre-commencement condition. They do not however appear to say that where a substantive, but negative, response has been made the LPA cannot then go on to impose the condition. 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. The NPPG says that the LPA must amend the trigger, not use the condition (if not necessary etc. as per the 6 tests) or refuse if it is necessary to have the condition to make the development acceptable. Either way it seems to me that there will be an appeal on the necessity of the condition.

Anonymous said...

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.

Anonymous said...

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. 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. not only conditions which prevent the 'commencement' of development. This becomes more apparent if one accepts that any particular development may comprise more than one 'type' of development i.e. change of use, building operation, engineering operation, or other operation.

Further, the pre-commencement regulations appear to provide no discretion at all as to when they apply. 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. Accordingly, the regulations appear to be odds with the planning practice guidance?

Your guidance/advice would be appreciated here?

Richard W said...

I suspect the answer to the first question is in the Act, not the Regulations. Given that S100ZA(5) of the TCPA 1990 is in the form of a prohibition, then the prohibition applies unless disapplied by the Regulations. 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. "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. 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. 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”. So in my example doesn’t the question become: “Is the ‘construction of the roof’ within the scope of ‘any building or other operation comprised in the development’. 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. “pre-commencement” as intended. Well, the word ‘any’ answers this question. Any operation comprised in the development is caught by the section isn’t it? Clearly not the original intent, but perhaps an unintended consequence of the drafting.

(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…?)

And then there’s the question of how this section operates in a case where the development includes both building operations and a material change of use, e.g. green field housing development.

Anonymous said...

I don't understand Richard W's concern. 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. Where's the confusion?

Richard W said...

Too many Anonymouses (Anonymi?)

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.

Anonymous said...

The concern raised by Richard is similar to the one raised by me in my comment on 3 October 2018 at 10:06 above. 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.