If you have ever been involved with planning applications for developments then you may be familiar with the rigmaroles of Pre-Commencement Planning Conditions (PCCs) and the burdens they impose on developers. Often creating additional cost to developments, these conditions are often viewed as unnecessary and cause unwanted delays as they prevent work from starting, following the grant of planning, until such conditions have been completed to the satisfaction of the Local Planning Authority.
Developers will no doubt be pleased to hear about the changes to the law which came into effect on 1st October 2018. Under the new Regulations made under the powers given in the Neighbourhood Planning Act 2017, Local Planning Authorities (LPAs) are now to ensure that PCCs are only imposed if they meet the tests contained in the National Planning Policy Framework. The premise behind the change is to speed up the planning process from grant of planning to work beginning, however whether this can be achieved or not will remain to be seen.
What does this mean for LPAs?
In addition to making sure PCCs meet the NPPF tests, LPAs must also now give developers written notice of their intention to impose such conditions and obtain the developer’s consent for the same. They must also set out their reasons for the PCC and their reasons for making it a pre-commencement condition and not a standard condition. In turn, developers will be allowed to challenge the PCC and enter into negotiations with the LPA to have it amended, removed or made into a post-commencement condition. If no agreement can be reached between the parties then the application will be refused.
What does this mean for developers?
Following receipt of such a notice, a developer has only ten days in which to provide a substantive response to the LPA. If they fail to respond, the condition will be given deemed consent. Developers will need to be alive to the receipt of any notices and be quick to respond with amendments or refusal to avoid deemed consent being given.
The developer must provide a substantive response if they wish to challenge a condition. Substantive is defined in the Regulations as a response that states the applicant does not agree with the proposed condition or provides comments on the proposed condition and it may be useful at this stage for developers to suggest appropriate redrafting suggestions. We are yet to see what view will be taken on appeal where a notice was not responded to.
It’s clear that these changes have been brought about to speed up the process and they offer an obvious advantage to developers to get involved in the planning process from the outset and to collaborate with LPAs to ensure that developments remain financially viable. Developers may be reluctant to get involved however, given that if an agreement cannot be reached between the parties then the application will be refused. This could be a costly and time-consuming exercise if the LPA isn’t amenable to proposed suggestions or amendments. If developers are putting applications at risk, or reluctantly consenting to unwanted PCCs then the overarching objective of the reforms are not met.
It will be interesting to see how the Regulations impact the planning process, particularly where planning is considered at committee level. A further point to consider is that the Regulations only apply to PCCs and so we may see LPAs navigating their way around their new obligations and we could see an increase in Pre-Occupation Conditions (where appropriate) instead.
If you are looking for advice on planning or any other commercial property transactions then please give our team a call on 01883 708155 and we will be happy to help.
Nicola Rundle – Commercial Property Solicitor