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Limits to growth: pre-commencement conditions

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Housebuilders are up in arms about the use of conditions requiring approvals before work can start holding back delivery of consented schemes.  The 2008 Killian Pretty report recognised the problem, but too few of its recommendations were taken up. A reality check is needed though – using common sense would help more than doing away with necessary controls.

Pre-Conditions to growth

George Osborne’s Autumn Statement 2013 committed to legislating to treat planning conditions as approved where a planning authority has failed to discharge them on time (and strengthening the requirement to justify such conditions).  The Government has now announced that it will introduce these changes in April – applications will be automatically approved if councils “fail to discharge a condition in time“.

Is it important?

The issue is significant because development in breach of pre-conditions will generally make the whole of the works unlawful applying the principle in FG Whitley & Sons Co Ltd v SoS Wales (1992). In the Greyfort Properties Limited v SoSCLG [2011] case, access road works had been carried out to bank a consent before it expired without submitting the finished floor levels (as required by a pre-commencement condition).  The Court of Appeal upheld the Inspector’s view (refusing a Certificate of Lawfulness) that Whitley applied – the permission had lapsed and the work done was unlawful. 

Given the potential consequences, it is frustrating when there are delays in dealing with an increasing stream of pre-commencement approvals.  However, authorities are sometimes justifiably concerned – detail that could have been provided at the (after all, detailed) application stage is submitted just before the permission is due to expire.  Add to that the painful shortage of planning staff and no-one is happy.

Reality Check

babySome of the troublesome conditions may be trivial and unnecessary, but their presence often reflects the way that applications are approved within the timescales expected of authorities despite details that are either missing, illustrative/ indicative or poor. If submitted details, Design and Access Statements and Design Codes are up to the job, the justification for many of the conditions falls away (see NPPF 59 and 60).  As Killian Pretty recognised, “part of the answer lies in improving the quality of applications submitted in the first place“.

If the system of conditional discharges is made tougher, authorities are likely to look for more (or more acceptable) detail at the application stage.  Developers must be prepared to embrace that where they are serious about quick delivery.  LPAs may also look to use Section 106 obligations, which are likely to escape the reforms.  A more effective and proportionate response than allowing development where genuinely inadequate or unacceptable detail is submitted would be to allow appeals against pre-commencement conditions that do not re-open the whole permission to scrutiny. The process and timescales for the new Section 106 viability challenge process is a good model in that sense and would help drain the bath water without harming the baby.