1 February 2018 update:
In July 2017, the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017, commenced a series of provisions of the Neighbourhood Planning Act 2017
relating to the use of conditions. The provisions included those giving the Secretary of State (SoS) the power to make a set of regulations governing the circumstances when the agreement of an applicant does or does not have to be obtained to the terms of a pre-commencement condition (proposed to be attached to a full planning permission).
A four week consultation
regarding the draft Town and Country Planning (Pre-commencement Conditions) Regulations 2018 is in progress and will conclude on 27 February.
The draft Regulations largely reflect the ‘initial draft Regulations’ on pre-commencement conditions that were annexed to ‘The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’ (published in 2016), and discussed below. Accordingly the draft regulations are broadly as anticipated by the development sector.
In essence, the draft Regulations mean that the decision-maker will have to give notice of their intention to attach a pre-commencement condition to a full planning permission (including a s73 full planning permission, an appeal decision relating to full planning permission, and an appeal against an enforcement notice), and seek the applicant’s agreement.
The notice must include the proposed pre-commencement condition, the reason(s) for the condition and reason(s) why it must be a pre-commencement condition. The applicant will have ten days to respond to the notice, after which time a determination may be made and the pre-commencement condition attached if planning permission is granted. A decision may be made earlier, if the applicant responds (agreeing, disagreeing or suggesting amendments to the proposed pre-commencement condition), within the ten day notice period.
The SoS power to make regulations about what kind of conditions may or may not be imposed on a relevant grant of planning permission has also commenced. However, the new draft Regulations relate only to pre-commencement conditions, and there is no indication that such limitations on the use of conditions in law, which reflect case law and the ‘six tests’ national policy in any event, will be subject of the necessary secondary legislation to bring them into force.
The Neighbourhood Planning Act 2017 gained Royal Assent on 27 April, and several of its provisions have come into force. This guide provides a summary of the measures in the Act that relate to the use of planning conditions in England (see also the ‘essential guide to changes to plan-making’ which includes the changes relating to local plans and neighbourhood plans). These provisions are not yet in force.
What was the Government hoping to achieve?
The Government’s intention was that the Act would reduce the time lag between planning permission being granted and work starting on-site, as reflected in the provisions regarding planning conditions. The Government was concerned
‘about the number of unnecessary or otherwise unacceptable conditions attached to permissions… It is therefore vital to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.’
Once these provisions of the Act are commenced, the circumstances under which pre-commencement conditions may be imposed without an applicant’s consent, and conditions that are prohibited, will be set out in regulations. A draft of these regulations will have to be consulted on, before they can be made, laid and come into force.
of the Act will insert a new section into the Town and Country Planning Act 1990: section 100ZA ‘Restrictions on power to impose planning conditions in England’
. For the avoidance of doubt, section 100ZA relates to limitations as well as conditions, and includes the modification of a planning permission.
The Secretary of State (SoS) must issue guidance on the operation of this new legislation on the imposition of planning conditions, and the Regulations that relate to it.
First proposed in the Budget 2016, section 100ZA will require the agreement of applicants to pre-commencement conditions
on full planning permissions, granted on application (in England).
However, s100ZA(6) also allows regulations to be made that set out when planning permission may be granted subject to a pre-commencement condition, without first obtaining the applicant’s written agreement.
Will any types of pre-commencement condition be expressly exempted from needing the agreement of the applicant?
The Government’s 2016 consultation document
stated that the requirement of the LPA having to seek the applicant’s approval before attaching a pre-commencement condition would apply ‘while retaining the ability of the local authority to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework’
‘This measure will not restrict the ability of local planning authority to propose pre-commencement conditions that may be necessary – for example, conditions in relation to archaeological investigations or wildlife surveys’ (para 11).
Consequently, and given the provision at s100ZA(6) described above, it had been anticipated that the regulations would prescribe the circumstances when planning permission could be granted subject to a pre-commencement condition, without the written agreement of the applicant to that condition.
However, this will not necessarily be the case. ‘Indicative draft’ regulations
relating to the Act’s provisions on conditions were included within Annex A of a 2016 ‘Further Information’ document; it is important to note that they have not been consulted on.
The indicative draft regulations are worded such that the applicant’s written approval would always be required – albeit that in certain instances, refusal to give approval would lead to the refusal of planning permission. The Government response
to the 2016 consultation confirms that this is the intention and explains:
‘We want to reassure those who expressed concern that these proposals will not restrict the ability of local planning authorities to seek to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework’ (para 11, (my emphasis))
‘In the unlikely event that an applicant refuses to accept a necessary pre-commencement condition proposed by a local planning authority, the authority can refuse planning permission.’ (para 3)
The Government has frequently noted that these measures build on current, national Planning Practice Guidance, and that applicants and the LPA not coming to agreement would be an ‘unlikely event’. Perhaps it will be, as LPAs consider whether they can successfully defend the need for any given pre-commencement condition at appeal.
In any event, future regulations could of course include such an exemption.
Proposed procedure for the imposition of pre-commencement conditions
If the indicative draft Regulations
were to become law, the procedure would be as follows. The LPA (or the SoS) would write to the applicant giving notice of the intention to impose the pre-commencement condition(s). And unless the applicant responds within 10 working days of the notice, advising either that they don’t agree with the proposed condition, or providing comment on the proposed condition, the pre-commencement condition would be imposed. A time limit longer than 10 working days may be agreed in writing by the applicant and the LPA (or SoS where applicable).
The LPA would be able to decide at what point during the determination process it seeks the applicant’s agreement to a pre-commencement condition.
The indicative draft Regulations do not require the applicant to respond in writing, but it would be prudent to do so. If the applicant does not agree to the proposed pre-commencement condition the LPA could amend it, remove it, or make it a post-commencement condition. If none of these options would make the development acceptable, planning permission would be refused, and the applicant would need to consider appealing the decision.
Thus both the applicant and the LPA would have to consider whether a proposed pre-commencement condition is truly essential, and therefore whether or not an Inspector would be likely to accept that viewpoint. In practice, given the cost and timescales of an appeal, particularly for large development, applicants may accept a pre-commencement condition in the first instance but then seek to amend or appeal it, depending on the cost implications of that pre-commencement condition.
Other limitations on the use of planning conditions
Section 100ZA also permits the SoS to make regulations that could be used to bar all manner of full and outline planning permission conditions that do not meet the national policy tests in the National Planning Policy Framework (NPPF) - tests which are themselves now in law. These Regulations must be consulted on in draft and approved by both Houses of Parliament.
‘Indicative’ secondary legislation regarding prohibited conditions
The Government consulted
on its intention to use s100ZA powers to make regulations on conditions not meeting the policy tests within the NPPF. The ‘indicative draft’ regulations relating to the Act’s provisions on conditions include indicative draft regulation 2(1), which would prohibit the imposition of the following categories of conditions:
‘(a) a condition that requires the development to be completed;
(b) a condition that requires the applicant to pay money or to provide some other form of consideration except where the carrying out of development is prevented or restricted until such condition is fulfilled;
(c) a condition that requires compliance with a legislative requirement, other than an optional requirement as described in regulation 4(1A)(b) or 36(2)(b) of the Building Regulations 2010 [where the minimum standards are exceeded and only apply where a condition requiring compliance is imposed];
(d) a condition that requires the disposal or conveyance of an interest in the land to a particular person (except a condition which prevents or restricts the carrying out of development until an agreement has been entered into in accordance with section 30 of the Highways Act 1980) [interest is defined];
(e) in the case of a grant of outline planning permission, a condition which reserves a determinable matter for the subsequent approval of the local planning authority [the draft regulations define determinable matter, effectively it is where details have been provided at outline stage and are not illustrative]
Regulation 2(2) would provide that:
A condition which imposes costs on the applicant may only be imposed on a grant of planning permission if the costs do not make the development in question economically unviable.’
The Government indicated that it would plough on with converting the policy tests into legal ones, despite noting that many respondents (two thirds) did not support the prohibition of certain conditions, on the basis that the current policy tests and the appeals process were sufficient safeguards, and the mandatory consultation on draft regulations in the Act reflects this response.
Should procedures be put in place before the regulations come into force?
As indicatively drafted, the regulations controlling the use of conditions would apply to planning applications granted (as opposed to submitted) after a certain date. So while the regulations might allow a time lag between the regulations being made, laid and coming into force that reflects the 8, 13 or 16 week determination periods, some or all planning applications submitted before the regulations come into force could be subject to them.
Consequently, LPAs will need to have systems in place to seek applicant approval of pre-commencement conditions on all planning applications under consideration on or after a given date. This might include procedures for seeking an applicant’s approval of a pre-commencement condition before the regulations come into force, in order to avoid delaying determination of the application.
The regulations would require review after five years, and would expire after seven years if the Government did not extend them (obviously the Government could revoke the regulations prior to five or seven years in any event).
When might the restrictions on powers to impose planning conditions come into force?
Section 14 is not yet in force, so the SoS does not have the power to make regulations controlling the use of conditions yet. But given that regulations have been drafted, that the Conservatives are likely to win the general election, and that current Housing and Planning minister Gavin Barwell has made public his desire to return to DCLG, one might conclude that the new measures are likely to be in force by the end of the year. This would allow time to prepare, consult on, and respond to the consultation on the draft regulations, and for DCLG to draft the accompanying, required guidance.
Government response to the consultation on improving the use of planning conditions
The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers
The Neighbourhood Planning Bill 2016/2017 Delegated Powers Memoranda
 Whilst the some of the planning-related provisions of the NPA 2017 (Part 1) extend to England and Wales, the provisions apply to England only.
 ‘Pre-commencement condition’ is defined in section 100ZA(8) of the Town and Country Planning Act 1990 (not yet in force):
“(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”.”
 ‘Indicative draft’ regulations relating to the Act’s provisions on conditions were included within Annex A of The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’(the ‘further information document’), but they have not been consulted on.
Image credit: Uber Offices