Consultation On Deemed Discharge of Planning Conditions

There is currently a Government planning consultation on, amongst other things, the deemed discharge of planning conditions. As developers are very much aware, unnecessary delays in the discharge of planning conditions can cause significant problems. To address this, the Government is seeking enabling powers to introduce the deemed discharge of certain planning conditions in the Infrastructure Bill, which is currently going through Parliament.

How and when will the deemed discharge apply?

A. As is often the case with Government proposals, much of the procedural detail is yet to be worked out in secondary legislation.  For example, and   crucially, the time period for non-determination is yet to be worked out.

B. We understand that a deemed discharge would only apply to planning conditions that are attached to planning permission when it is granted, and that require the further approval of the local authority on matters of detail. Where not excluded and subject to following the correct procedure, a deemed discharge would mean that the condition would be treated as approved – deemed to be discharged – where a decision has not been made on the application by the local planning authority within a ‘reasonable time’ period; and at the moment it is not clear what a reasonable time would be.

C. It is intended that a deemed discharge could only be activated by the applicant serving a notice, to ensure that local authorities receive notice of an applicant’s intention to rely on a deemed discharge, and to allow the applicant to proceed where no decision has been made within a reasonable time.

What safeguards are proposed?

The consultation response explains that the measure would retain ‘robust safeguards’, including:

1. Appropriate exemptions for the most sensitive types of condition.

2. A notice procedure to ‘ensure that a deemed discharge will never be a surprise to a local planning authority’.

3. Flexibility to promote discussion between the local planning authority and the applicant – a deemed discharge would need to be activated, i.e. it would not be automatic and timings could be changed if there is agreement.

What are the proposed exemptions?

Exemptions are proposed in respect of conditions which:

I. Are attached to development subject to an environmental impact assessment.

II. Are attached to development likely to have a significant effect on a qualifying European site.

III. Are designed to manage flood risk.

IV. Require an agreement under Section 106 of the Town and Country Planning Act, or Section 278 of the Highways Act 1980, to be entered into.

V. Require the approval of details for outline planning permissions required by reserved matters.

VI. Relate to the investigation and remediation of contaminated land.

VII. Relate to highway safety.

VIII. Relate to sites of special scientific interest.

IX. Relate to investigation of archaeological potential.

What will be the impact on local authorities?

Not surprisingly, certain authorities have responded critically to the proposals. They have asserted that the measure could divert their focus from other planning priorities, and argued that delays associated with discharging conditions were often caused by third parties and resource constraints, i.e. for reasons beyond their control.

The Government was keen to emphasise that deemed discharge is not about penalising local authorities, “It is about ensuring that they hit the deadlines they are already working towards, and providing the applicant with greater certainty as to when a decision can be expected.”

It also stated that the proposal should not undermine the local authority’s ability to consider the matter properly within a reasonable timescale, or to refuse approval where it was not satisfied with the proposal, or to enforce where a developer has not complied with the substantive condition.

What will be the consequences for developers and third parties?

Not surprisingly, the response to the consultation demonstrates that most prospective applicants and developers support the introduction of deemed discharge. Many developers felt that it could help to limit delays currently experienced in discharging conditions and reduce consequential increased and unnecessary costs.
It is also hoped that it should give developers more certainty in respect of when decisions can be expected.

To further support the measure and ensure that it operates effectively, the government intends to publish planning guidance on its expectations of third parties in cases where their advice is sought. There is also flexibility within the procedure to enable the applicant and the local authority to agree a longer time period to consider the application where the authority needs more time to seek advice from a third party.

Should you have any queries on this matter then please contact Elaine Allen, Partner at Prince Evans Solicitors LLP, Social Housing Development, on 020 8799 1870, by mobile on 07958 610911, or by Fax on 020 8840 7757.

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