Conditions. )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. Scenario 5: Detailed AMS requested by LPA at planning; intent to attach performance condition. 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. So an LPA cannot impose a condition in the face of a substantive objection from the applicant.A follow up question from me.All of the press and discussion around this has been around traditional pre-start conditions e.g. 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. 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. The LPA reviews the proposed development details, and grants consent with a pre-commencement condition requiring that an AIA be provided. 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. 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. “pre-commencement” as intended. 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. 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. 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. 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. Conditions imposed on a planning permissions are set out in the decision notice. 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. There has been a series of cases considering the effect of breaching a condition on implementation: 1. This means crucially that any pre-commencement planning conditions must be complied with before works commence on site. 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 Scottish position. 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. Message must have at least 0 and no more than 1024 characters. It went on to state, “The developmen… If no substantive response is received from the applicant they will be deemed to have consented to the pre-commencement condition. It's a bit annoying that applications due to be determined on or around this date appear to be being delayed because of this extra step, but there we are. 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. 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. Rather than refusing a planning application, a planning authority might grant permission, but with attached planning conditions. If none of these options would make the development acceptable, planning permission will be refused. The views expressed are my own and nobody else’s. These will commonly be in relation to: Details that need to be confirmed before the permission can be implemented, known as 'pre-commencement conditions'. Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. 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. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The firm has advised leading global renewable energy developer BayWa r.e. 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. 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 … I suspect the answer to the first question is in the Act, not the Regulations. The Regulations require the LPA to go through the notification procedure if they intend to impose a pre-commencement condition. Therefore, the permission remained ‘live’. The legislation allows for exclusions to this to be made, but, as of yet, no exclusions have been prescribed. The case offers a useful summary of the position with regard to pre-commencement conditions and lawful implementation. 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. It does also mean though, that more extensive discussion and negotiation may be necessary before permission can be granted. Pre-commencement conditions - new planning rules from 1 October 2018. Hart is generally approved in that the condition must be one which goes to the heart of the planning permission. Conditions which are fundamental to the development are a more problematic category. 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. Please refer to the fees schedule. Any operation comprised in the development is caught by the section isn’t it? 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. 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. As an alternative to outright refusal, the Local Authority may grant permission subject to conditions. 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. 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. The new regulations only apply to pre-commencement conditions for planning permissions granted or modified on or after 1 October 2018. The government’s stated aim is to reduce the time lag between planning permission being granted and work commencing on site. 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. Doonin Plant Ltd v Scottish Ministers [2011] CSOH 3 We work hard to make sure Burges Salmon is a great place to work. The changes are presented as a promoter-friendly means of creating efficiency and speeding up the development process. Breaches of pre-commencement conditions dealing with more trivial matters are less likely to be caught. UK on the acquisition of High Constellation Wind Farm from Blue Energy. 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 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.'. 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”. They may include important works such as surveys on contaminated land, drainage studies, or archaeological (or other heritage) investigations. A major contributory factor to that delay is identified as an over use of pre-commencement or pre-development conditions.