In a recent matter involving a housebuilder, the importance of discharging pre-commencement conditions in a timely fashion was brought to the fore when the council issued a Planning Enforcement Warning Notice (EWN) to the developer.
In this briefing, legal director Joanna Crow outlines the options for developers following an Enforcement Warning Notice, as well as key considerations for discharging pre-commencement conditions.
A relatively new weapon in the planning authority’s arsenal, the EWN came into being as a result of the Levelling-Up and Regeneration Act 2023 (LURA) which received Royal Assent on 26 October 2023. Chapter 5 of the LURA introduced various changes to the enforcement provisions contained in the Town and Country Planning Act 1990 (TCPA), the significant one being the extension of enforcement periods for planning breaches which received fairly extensive press coverage. In addition was the EWN which was incorporated to formalise the process for a local planning authority to invite a retrospective planning application. Like a planning contravention notice it is a step before further ‘formal’ enforcement action is sought to rectify a breach of planning control.
Developers' options following Enforcement Warning Notice (EWN)
In the present factual context, the EWN was issued because the developer had failed to obtain discharges of a number of pre-commencement conditions (for an outline scheme for circa 200 dwellings). The developer had significantly progressed the development to the point that half of the dwellings were occupied (including affordable housing) and a significant number of properties, whilst not yet built, were under contract or reservation. There were, in the main, three options for the developer:
- Submit a retrospective application pursuant to section 73A of the TCPA which is what an EWN seeks to achieve (but the key issue with this option is that it is backward-looking and, on its face, would not cover the construction of the dwellings not yet built);
- Demonstrate that the pre-commencement conditions had been discharged or dealt with in substance (if not in form) in a way that would mean the works carried out to date were lawful and that the development could continue to be built out under the existing permission; or
- Submit a fresh planning application which was understandably the most concerning for the developer. Aside from cost (including that arising from changes to planning policy, such as the requirement for 10% biodiversity net gain) there was no assurance it would be granted.
Key considerations for discharging pre-commencement conditions
To convince the planning authority that they could rely on Option 2, it was necessary to articulate the legal principles on the discharge of pre-commencement conditions and what constitutes lawful implementation. To that end, the following should be observed:
- At the outset, carefully consider the use of pre-commencement conditions. These are, for the most part, incorporated by agreement between the planning authority and the developer. In accordance with planning guidance and policy, push back if discharge of the planning requirements that the condition seeks to address is not fundamental to a start on site.
- Submit your application for discharge of pre-commencement conditions in good time, allowing for delays within the planning authority. Separate applications (rather than rolling multiple conditions into a single application) are better.
- It is best practice is to obtain the discharge of pre-commencement conditions prior to a start on site, but the following case law principles are useful where this is not always possible, or the implementation and works carried out pursuant to the permission are called into question:
- The Whitley Principle – states that implementation before true conditions precedent have been discharged cannot be taken as lawful commencement of development. Whitley also established that pre-commencement conditions could be discharged after the expiry of the planning permission provided they were submitted before that date (but this approach is risky if the content is not satisfactory to enable discharge in substance).
- Hart Aggregates – considered how to establish whether the Whitley principle applied by looking at the phrasing of the condition and the effect of the condition in the context of the planning permission: does it go to the heart of the permission so that failure to comply would make the development unlawful?
- Flintshire – this established that compliance in substance albeit not in form could enable a condition to be deemed as discharged using a common-sense approach. In this case the court found that a traffic report condition has been complied with in substance on the basis of an earlier report that had been provided to the authority and was acceptable in substance albeit there was no formal written application nor written discharge. We would caution against reliance on this principle in tackling the discharge of pre-commencement conditions.
Joanna Crow is a legal director in the real estate, planning and construction team. She advises on the full spectrum of development work involving residential, commercial and mixed-use schemes, as well as on consortium and strategic land.
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