Restricting Pre-Commencement Conditions: It Will Be A Start

A few words on planning law before something more important. 

This week it was good to see MHCLG’s consultation document Improving the use of planning conditions: consultation on draft regulations (30 January 2018). Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. However, I’m not sure that this remedy is the panacea (I’m trying to resist the temptation to coin the term “planacea”, oh..). 

 What is proposed is that any decision maker cannot grant planning permission containing a pre-commencement condition unless the applicant has either agreed to the terms of the condition or hasn’t responded within ten working days.

 That is positive and should reflect good practice, certainly on bigger schemes where lists of draft conditions are shared by officers for discussion with the applicant prior to permission being issued. However, as usual, if you delve into the legal detail, I’m not sure that the mechanism will be as broad in its scope as you might think, due to the definition of “pre-commencement condition” in the parent legislation. Section 100ZA(8) Town and Country Planning Act 1990, introduced by section 14(1) of the Neighbourhood Planning Act 2017, defines “pre-commencement condition” as:

 “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.”

 This rules out use of the procedure on outline planning permissions! That certainly isn’t identified in the consultation paper. I can see why the procedure shouldn’t apply to the standard condition setting out the matters for which reserved matters approval is required but for all other pre-commencement conditions the position is the same as for full planning permissions.

The definition also has the effect of restricting the process to “pure” pre-commencement conditions. The requirement would not apply to a condition that prevented any development from proceeding save for defined initial works which might be very minor, but for which discharge might still be critical to the overall development programme, or to conditions that might need to be discharged before particular phases of development could proceed. “Pure” pre-commencement conditions are indeed a particular evil for developers as they will often be in the way of the planning permission being kept alive by the carrying out of an initial material operation (and may indeed lead to difficult CIL liability issues – set out in a good 5 January 2018 blog post CIL – false starts can be punishing by Roy Pinnock) but they are no more problematic for the timely carrying out of the whole development than other conditions.

What if an applicant resists a requested pre-commencement condition? Of course it is to be hoped that a compromise will be found. But if not, ultimately the decision maker’s only option may be refusal of the application.

What if a decision maker fails to follow the procedure and issues a permission with an unwelcome pre-commencement condition? In theory of course the applicant might consider challenging the permission by way of judicial review but surely this would be a sledgehammer to crack a nut as opposed to a section 96A or 73 application to amend the condition.
So that was all I had to say on a short consultation paper.
But what really has been on my mind this week has been the sad news of the death of retired Court of Appeal judge Sir Henry Brooke. As a lawyer and more specifically in the last few years as a legal blogger he was an inspirational figure to me. I didn’t know him personally but felt as if I did. His humanity, intellectual generosity, and wisdom – along with a healthy and undimmed preparedness to put technological advances and social media to practical use – was evident in all he blogged and tweeted. For instance, if you’ve benefited from the use of technology in court, or clicked into Bailii case transcripts? Thank Sir Henry. In the time I’ve saved you by this short post, do dip into his “musings, memories and miscellanea” blog, within which you will find this transcript of his 2008 Peter Boydell memorial lecture on The role of Mediation in Planning and Environmental Disputes. My condolences to Sir Henry’s family.

 Simon Ricketts, 2 February 2018

 Personal views, et cetera