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Detailed planning approvals under conditions - new proposals

27 June 2014

Obtaining discharge of pre-commencement conditions can be a lengthy process. The Infrastructure Bill, recently introduced to Parliament, contains proposed changes which will be helpful to developers.

When granting permission for major development, planning authorities frequently impose pre-commencement conditions, requiring further detailed approvals to be obtained before development starts. As a general rule, development commenced in breach of a condition imposed on a planning permission will be unlawful.

There are exceptions, but these are complex, established through an ever-evolving body of case law. 

Developers routinely face delays in obtaining approval of pre-commencement matters from over-stretched authorities.

They then face a difficult decision - whether to proceed with the development at risk of enforcement or incur the financial consequences of delay. Recent proposals contained in the Infrastructure Bill are designed to assist developers with that scenario.

The Infrastructure Bill began life in the House of Lords in June and will be debated in Committee in July. It contains an eclectic mix of provisions, including the establishment of strategic highway companies, invasive species, energy and changes to the procedure for determination of national significant infrastructure projects. 

Importantly for those in development, it also contains proposals whereby the approval of local planning authorities in England to matters required under a condition of a planning permission can be deemed to be given. This will apply where an application has been made for approval and the authority has not given notice of its decision within a prescribed period.

  • If the Bill becomes law, a further development order (or more probably changes to the Development Management Procedure Order) will be required to establish how the new provisions will work and to set the prescribed period for authorities to make their determinations before approval is deemed. 
  • The Bill suggests, however, that the applicant and local planning authority will be able to agree a longer determination period on a case by case basis.
  • The development order may also set out certain types of conditions or developments to which deemed approval will not apply.
  • There will be transitional arrangements - at present, the Bill provides that the provisions will only apply to planning permissions granted following an application submitted after the development order referred to above comes into force.

These proposals are likely to be controversial with planning authorities, as a weakening of their control over development.

If the Bill becomes law, there is a danger that authorities may routinely refuse applications rather than risk facing deemed approval, unless the applicant agrees to an extended determination period.

That could undermine the whole purpose behind the proposed changes.

This article was written by Claire Fallows.

For more information please contact Claire on +44 (0)20 7427 1046 or claire.fallows@crsblaw.com