Pre-commencement conditions are those conditions on a planning permission which are required to be satisfied before any building or other operation comprised in the development is begun.

Legislative changes

From 1 October 2018, Local Planning Authorities (LPAs) cannot impose pre-commencement conditions without agreeing them in advance with applicants.[1] The Government's rationale behind this legislation is to speed up the delivery of development, which they were concerned was being held up by the number of onerous pre-commencement conditions.

So what's the procedure?

Before planning permission is granted, the LPA must serve a notice to the applicant including:

  1. the proposed pre-commencement condition;
  2. the full reasons for the condition set out clearly and precisely;
  3. the full reasons for the proposed condition being a pre-commencement condition, set out clearly and precisely; and
  4. notice that any substantive response must be received within 10 working days beginning with the day after the date on which notice is given ("notice period").[2]

What does an applicant need to do after receiving the notice?

An applicant must within the notice period provide the LPA with:

  1. a substantive response (stating that the applicant does not agree to the imposition of the proposed condition or providing comments on the proposed condition); or
  2. written agreement to the terms of the proposed pre-commencement condition.

The Planning Practice Guidance (PPG) states that where the applicant provides written agreement, the LPA may grant planning permission subject to that pre-commencement condition. If the applicant provides comments within the notice period, the condition cannot be imposed. Where the applicant does not respond within the notice period, the LPA may grant planning permission subject to the terms of the pre-commencement condition specified in the notice. If the applicant does not agree the terms of the proposed pre-commencement condition, the LPA may:

  1. grant planning permission without the pre-commencement condition;
  2. seek written agreement to an alternative pre-commencement condition; or
  3. refuse to grant permission (if it considers that the disputed pre-commencement condition is necessary to make the development acceptable in planning terms).

Will the changes really lead to fewer pre-commencement conditions?

Whilst the procedure could become a useful planning tool for applicants to negotiate with the LPA over pre-commencement conditions and/or provide alternative wording, the PPG already provided that pre-commencement conditions should only be used where the LPA is satisfied that the requirements of the condition are so fundamental to the development that it would have been otherwise necessary to refuse the permission.

Developers keen to secure permission as quickly as possible and to avoid lengthy appeal delays may well just agree what pre-commencement conditions are proposed. Hopefully however the change will be that LPAs will reduce slightly the number of pre-commencement conditions (knowing that if a developer refused to accept them and went to appeal there could be close scrutiny of the need for the detail ahead of commencement).

[1] Section100ZA (5) Town and Country Planning Act 1990

[2] Town and Country Planning (Pre-Commencement Conditions) 2018