As it's a new permission, presumably the new procedure should be followed?If the LPA forgets to follow the new procedure for pre-commencement conditions carried over, are those conditions invalid or is the planning permission invalid (which would be very unfair)? Reviewing pre-commencement conditions From October 2018, amendments to legislation* were introduced that require local planning authorities to serve notice on applicants for any pre-commencement conditions that it wishes to impose, where this has not already been agreed in writing, unless a specific set or circumstances apply. For more information about the issues in the article please contact Cathryn Tracey or Gary Soloman. This is an intriguing thought, but I somehow have a feeling that simply repeating the previous pre-commencement conditions in these circumstances wouldn’t necessarily trigger the need to seek agreement in respect of those conditions. The Regulations require the LPA to go through the notification procedure if they intend to impose a pre-commencement condition. The recent High Court case of R (Howell) v Waveney District Council [2018] EWHC 3388 is a helpful reminder that breaching a condition going to the “heart” of a permission renders implementation of that permission unlawful. green field housing development. In parallel, an application was also submitted to formally discharge the pre-commencement conditions which included materials, landscaping, flooding and car parking. The legislation allows for exclusions to this to be made, but, as of yet, no exclusions have been prescribed. The nature of conditions varies depending on the nature … 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 increasing use of pre-commencement conditions has been an irritation to developers for a long time and is generally cited as a cause of unnecessary delay to building out. 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. Please refer to the fees schedule. Therefore, the permission remained ‘live’. Any operation comprised in the development is caught by the section isn’t it? If it becomes common practice for applicants to disagree to pre-commencement conditions, we may find that there are significant delays to the grant of planning permissions, an increase in refusals and consequently more appeals. A major contributory factor to that delay is identified as an over use of pre-commencement or pre-development conditions. The NPPG says that the LPA must amend the trigger, not use the condition (if not necessary etc. Scenario 5: Detailed AMS requested by LPA at planning; intent to attach performance condition. Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. Given that S100ZA(5) of the TCPA 1990 is in the form of a prohibition, then the prohibition applies unless disapplied by the Regulations. This means crucially that any pre-commencement planning conditions must be complied with before works commence on site. Pre-commencement conditions - new planning rules from 1 October 2018. Work on the basis that development is commenced once (with the first operation or COU), safe in the knowledge that's what everyone else is doing too. A pre-commencement condition (also known as a 'Grampian' condition) is a condition imposed on a planning permission which must be complied with before the development permitted by the planning permission begins. The case offers a useful summary of the position with regard to pre-commencement conditions and lawful implementation. Accordingly, the regulations appear to be odds with the planning practice guidance?Your guidance/advice would be appreciated here? We regularly advise on pre-application strategies and on conditions attached to planning permission. A pre-commencement condition is defined in section 100ZA(8) of the Town and Country Planning (Pre-commencement Conditions) Regulations 2018, as a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92 of the 1990 Act) which must be complied with: Clearly not the original intent, but perhaps an unintended consequence of the drafting. Pre-commencement conditions are those conditions on a planning permission which must be fulfilled before work starts on site or before the use of land changes. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. If not, the permission expires. A fee is required for discharging conditions. However, I would be interested to hear what other people think about this. The views expressed are my own and nobody else’s. The concern raised by Richard is similar to the one raised by me in my comment on 3 October 2018 at 10:06 above. 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”. I don't understand Richard W's concern. 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. The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. Planning permission may be granted subject to a pre-commencement condition without the applicant’s written agreement, if the applicant has been notified of the intention to impose a pre-commencement condition and has not responded by the date specified in the notice. Message must have at least 0 and no more than 1024 characters. Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296 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 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. A recent case acts as a useful reminder that planning conditions which seek to prevent the commencement of development should not always be read literally, but with “a dose of reality”. From October 1, 2018, under section 100ZA of the Town and Country Planning Act 1990, 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 (except in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the “Regulations”)). The Regulations should also encourage developers to consider the choice between the: Developers will need good professional input to negotiate conditions precedent and advise on whether it is tactically advisable to accept such a condition, risk appeal or adopt a practical approach in any given scenario. These issues are all counterproductive to the government's aim of speeding up delivery of housing. Name must have at least 0 and no more than 256 characters. “pre-commencement” as intended. investing in front loading their planning application by providing information in the early stages which would avoid the need for a pre-commencement condition. Pre-commencement conditions are requirements that a local planning authority (LPA) needs the applicant to fulfil before a development can begin. The Regulations apply to conditions on a planning permission granted or modified after 1 October 2018. It sees the need to reduce 'the number of unnecessary and otherwise unacceptable conditions attached to permissions’ and ‘to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.' The pre-commencement conditions were not central to the development and therefore did not render the development unlawful. Pre-commencement conditions Planning permission (and other types of consent) may be subject to conditions that require further details to be submitted for the approval of the local planning authority before the development is commenced. UK on ten-turbine Scottish wind farm acquisition, Court of Appeal case provides guidance on application of NPPF paragraph 11(d), Burges Salmon advises Bio Capital on refinancing of UK anaerobic digestion portfolio. 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.Dustin. (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…? The LPA reviews the proposed development details, and grants consent with a pre-commencement condition requiring that an AIA be provided. From October 1, 2018, under section 100ZA of the Town and Country Planning Act 1990, 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 (except in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (the “Regulations”)). Conditions. 5 Pre-commencement conditions are planning conditions which prevent any development authorised by a planning permission from taking place until the condition has been formally discharged, for example, the condition may require the approval of detailed aspects of the development. Condition two of the consent required details and samples of building materials to be provided to and approved by the Council before work commenced. What about the situation where planning permission was granted prior Section100ZA coming into force and then a s73 variation is approved after it came into force only varying some conditions (typically minor changes to drawings)? It is early days and we will have to wait and see if the delay is simply moved from post-consent to pre-consent. Too many Anonymouses (Anonymi? The firm has advised leading global renewable energy developer BayWa r.e. The first assessment in accordance with the Whitley Principle is that a decision has to be taken as to whether the condition goes to the heart of the permission. "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. If none of these options would make the development acceptable, planning permission will be refused. Pre-commencement conditions: These conditions need to be formally discharged prior to construction and or development starting on site; Pre-occupation conditions: These conditions need to be formally discharged prior to the development being occupied Fees. This becomes more apparent if one accepts that any particular development may comprise more than one 'type' of development i.e. Contact phone number must have at least 0 and no more than 24 characters. Pre-commencement conditions of this sort are commonly used throughout the country, and I think it is fair to say that most developers would be happy to comply with them, not least because the retention of trees is likely to enhance the visual appeal of … The new regulations only apply to pre-commencement conditions for planning permissions granted or modified on or after 1 October 2018. 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. This means it is vital for developers to comply with the strict timetable that the government justified as necessary in order to avoid ‘undue delay’. The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. as per the 6 tests) or refuse if it is necessary to have the condition to make the development acceptable. In effect, such conditions prevent any development on a site commencing until those pre-commencement conditions have been complied with … It went on to state, “The developmen… Otherwise any works done to implement in accordance with section 56(4) may not be lawful and may then be subject to challenge by the local authority. It sees the need to reduce 'the number of unnecessary and otherwise unacceptable conditions attached to permissions’ and ‘to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.'. UK on the acquisition of High Constellation Wind Farm from Blue Energy. This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. The basic position will be that 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. Potentially this could slow down the process of obtaining planning permission. )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. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. However, developers can find themselves entangled by a web of conditions that they must discharge before they are permitted to even commence development. necessary to make the development acceptable in planning terms. Conditions which are fundamental to the development are a more problematic category. The Scottish position. Every planning permission must contain a planning condition limiting the time within which the permission can be implemented. not only conditions which prevent the 'commencement' of development. Some conditions may require approval by the planning authority before development commences (such as agreeing the colour of materials), others can be discharged during the course of development (for example limits to site operatinghours). In other words, if the applicant does not respond to the notice within ten working days either advising that they do not agree with the proposed condition, or providing comment on the proposed condition, the pre-commencement condition could be imposed. Doonin Plant Ltd v Scottish Ministers [2011] CSOH 3 Burges Salmon advises BayWa r.e. 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. 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. You are the landowner for Scenario 1. They may include important works such as surveys on contaminated land, drainage studies, or archaeological (or other heritage) investigations. Breaches of pre-commencement conditions dealing with more trivial matters are less likely to be caught. It does also mean though, that more extensive discussion and negotiation may be necessary before permission can be granted. Pre-Commencement Conditions & obtaining applicant consent: Archaeology. For example, a pre-commencement condition to supply details of surface finishes could be qualified to allow them to be supplied before any above-ground works are commenced. The LPA is able to decide at what point during the determination process it seeks the applicant's agreement to a pre-commencement condition. A pre-commencement condition must not be imposed on the grant of permission (other than a grant of outline planning permission within the meaning of Section 92 of the 1990 Act) … The case involved a planning permission, granted in 2006 subject to conditions, to make extensions to two Victorian terrace houses in Hackney to provide four residential units (2 x 2 bed and 2 x 4 bed flats) and additional space for a synagogue. There has been a series of cases considering the effect of breaching a condition on implementation: 1. Where's the confusion? These Regulations give applicants an opportunity to have more input into draft permissions and hopefully when the permissions are issued they will be in manageable shape from a commercial perspective. Under the Pre-commencement Conditions Regulations 2018, which came into force on 1 October 2018, we now need to seek the written agreement of applicants to any pre-commencement conditions attached to permissions granted in or after that date.Pre-commencement conditions are those that need to be complied with … Hart is generally approved in that the condition must be one which goes to the heart of the planning permission. )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. For example, approval of the materials to be used The notice must set out: the text of the pre-commencement condition, the full reasons for the condition to be pre-commencement condition. The imposition of unnecessary pre-commencement conditions certainly does not help, but these new rules may not be sufficiently robust to improve the overall timeframe for the development process. Rather than refusing a planning application, a planning authority might grant permission, but with attached planning conditions. Conditions should only be imposed that satisfy the six tests set out belowin Chapter 3.Statutory consultees and applicants are also able to use this document as a reference when, for example, drafting suggested conditions. Conditions imposed on a planning permissions are set out in the decision notice. 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. The need to agree pre-commencement conditions with applicants will not prevent local planning authorities from imposing conditions that are necessary, the government says, while in the unlikely event that an applicant refuses to agree to a pre-commencement condition that is deemed necessary (e.g. The value of the Contact phone number field is not valid. Well, the word ‘any’ answers this question. Introduction: The process of assessing, identifying and removing archaeological remains from a site threatened by development has been an integral part of the planning process since the drafting and adoption of PPG16 in 1990. The second of the statutory instruments to have been introduced, the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 [v], clarifies the procedural requirements for local authorities to request permission to impose a pre-commencement condition, where this has not already been agreed in writing. We work hard to make sure Burges Salmon is a great place to work. The Regulations were made under powers given in the Neighbourhood Planning Act 2017. I suspect the answer to the first question is in the Act, not the Regulations. 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’. These are the key points in relation to pre-commencement conditions: These powers may seem far-reaching but it is important to remember that planning conditions must satisfy the tests that they are: Conditions are a useful tool for an LPA to control development. Clearly, what works in each case will depend upon specific circumstances. Overlapping planning permissions: which one is valid? notice that a substantive response is to be received no later than the last of the period of 10 working days beginning with the date after the date on which the notice was given. Pre-commencement conditions are those conditions on a planning permission which must be fulfilled before work starts on site or before the use of land changes. 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. Under new Regulations which came in to force on 1 October 2018, applicants are required to provide their written consent to pre-commencement conditions unless exclusion applies. As an alternative to outright refusal, the Local Authority may grant permission subject to conditions. Reason: Pre commencement condition to ensure the effective investigation and remediation of contaminated land sites and in the interests of health and safety and the quality of the environment in accordance with paragraph 170 of the NPPF and Policy BN9 of the West Northamptonshire Joint Core Strategy.
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