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New procedures for pre-commencement conditions come into effect from October 2018
Update: 20 September 2018: In June 2018 the Planning Practice Guidance regarding the use of pre-commencement conditions, within the chapter on ‘Use of Planning Conditions’, was introduced to provide guidance on interpreting the new legislation. The complete up-to-date guidance is available here. The beginning of May saw the making of two new statutory instruments, the combined effects of which will introduce new legal requirements where pre-commencement conditions are proposed to be attached to planning permissions. The legislation will bring into force several of the measures outlined in the Government consultation, ‘Improving the use of planning conditions'[i], published in January 2018. In short, from 1 October 2018, the new legislation will require local planning authorities (LPAs) to obtain applicants’ written agreement to the attachment of any pre-commencement conditions to a planning permission. This would also apply to Section 73 planning permissions to modify an existing condition. The measure aims to speed up the planning process by discouraging decision makers from including unnecessary pre-commencement planning conditions that might slow down starts on-site and consequently drive up costs, or even prevent development from happening at all. The sub-sections that will be brought into force by the Neighbourhood Planning Act 2017 (Commencement No. 5) Regulations 2018[ii] essentially make provisions related to Section 100ZA (5)[iii], which states: “Planning permission for the development of the land may not be granted subject to a pre-commencement condition[iv] without the written agreement of the applicant to the terms of the condition.” 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. The Regulations also set out the circumstances where a local authority can impose a pre-commencement condition without the agreement of an applicant. If an applicant has not already agreed in writing that the local authority can impose a pre-commencement condition, the local authority will be required to notify the applicant of the proposed condition in writing. The notification must set out the full text of the condition, the reasons for the condition, and the reasons why the conditions must be a pre-commencement condition. Applicants will then have ten working days in which to make a "substantive response" to the notice. As outlined in the regulations, a "substantive response" could be either be a statement that the applicant does not agree to the conditions, or a comment on the proposed conditions. If no response is received from the applicant within the ten-day period allowed, the regulations will allow planning permission to be granted, after ten working days, with any pre-commencement conditions referred to in the notice attached. The application may be determined earlier if the applicant responds within the ten-day period. If the applicant does not agree to the terms of the pre-commencement condition, the local authority can either amend the condition, remove it, or make it (for example) a post-commencement condition. If none of these options would make the development acceptable, planning permission would be refused.  Developers will obviously wish to avoid refusal, therefore the applicant should closely monitor the LPA’s reaction to the applicant’s written response to the notice, where written consent has not been given. There does not appear to be anything to prevent the developer writing to the LPA, following the formal notification procedure, to advise that the condition is acceptable to them after all.    If the wording of the pre-commencement condition is amended in a different way to the applicant’s proposal, it appears that a second notice must be issued to the applicant. However, for major schemes in particular, it is likely that most LPAs will continue best practice and discuss proposed conditions with applicants prior to the issue of the notice required by the regulations, to ensure that there are no surprises at that stage. Furthermore, the tweaking of pre-commencement condition wording and associated issuing of notices and responses could occur in writing fairly swiftly via email on standard templates. The Secretary of State must issue guidance to local planning authorities about the operation of this section and regulations made under it (s100ZA(10)), so one would anticipate that a Planning Practice Guidance update covering the dialogue and requirements between applicants and the LPA, in the context of the new regulations will emerge before October. Whilst the Regulations have brought few surprises, they do not go as far as expected and some groups may have hoped. In the recently published response to the consultation[vi], a number of respondents requested that exceptions should be made to the requirement for applicants to agree certain pre-commencement conditions, notably for matters regarding heritage, nature conservation and environmental protection. Such exemptions were originally proposed when the Neighbourhood Planning Bill was published in 2016, but had disappeared by the time of the first ‘indicative draft’ regulations in December 2016. Accordingly, no such exceptions have been made, and where complications arise and an applicant does not agree to a condition relating to such matters, the authority will refuse permission. Another omission (for now at least) is the exclusion of legislation which would prohibit certain types of conditions; subsections 1-3 of s100ZA have not been brought into force.  This legislation was intended to prohibit any condition not meeting the policy tests set out in the National Planning Policy Framework (para 206) and informed by case law (i.e. necessary, reasonable, enforceable, precise and reasonable in all other respects) as suggested in the 2016 Consultation response[vii]. On the whole, whilst the changes coming in simply consolidate existing practice into law, at present it is hard to say whether they will improve matters, or simply confuse matters further by adding another layer of complexity on to an already complex development management system. Whilst planning conditions play an important role in ensuring that development is acceptable, unnecessary pre-commencement conditions create delays which not only delay new development, but can make it difficult for developers to access finance. Enforced engagement between local authorities and applicants should therefore encourage more reasonable use of conditions by difficult, hesitant or mistrustful LPAs, whilst encouraging the possibly more intransigent applicants to accept conditions in order to ensure that planning permission is granted.   LPAs may find the process onerous, particularly for householder development, where those unfamiliar with the need to agree to pre-commencement conditions may not respond within ten days, meaning that applications typically decided in the last few days of the determination period do not meet the target deadline. To minimise this potential difficulty, some LPAs might be considering issuing a notice on receipt of specific applications, stating that if the planning application is approved certain pre-commencement conditions would be attached, to which the applicant would be required to respond within the defined period. In any event, to ensure that target determination periods are met, LPAs should complete all reports for applications that they consider might need pre-commencement conditions at least ten working days prior to the determination period ending.  Such a shift in approach – and the associated administration tasks involved – should not be underestimated. This alone might be sufficient to ensure that what might appear to be a fairly soft regulation has the effect desired by Government, and indeed fewer pre-commencement conditions will be attached to planning permissions after October – perhaps for smaller developments in particular. But alternatively, it may lead to unexpected refusals, where the applicant responds in the negative.   [i] MHCLG - Improving the Use of Planning Conditions - Consultation on draft regulations[ii] The Neighbourhood Planning Act 2017 (Commencement No. 5) Regulations 2018[iii] Section 100ZA of the Town and Country Planning Act 1990[iv] Pre-commencement condition is defined in s100ZA(8) as follows:(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.[v] The Town and Country Planning (Pre-commencement Conditions) Regulations 2018[vi] Government response to the consultation on pre-commencement conditions – May 2018[vii] Government response to the consultation on improving pre-commencement conditions - Dec 2016   


Neighbourhood Planning Act 2017: essential guide to future changes to development management
19 July 2017 update: the first Regulations commencing a series of provisions in the Neighbourhood Planning Act 2017 were laid on 18 July and are already in force. Of the Act’s development management changes, the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 mean that the Secretary of State (SoS) can now go ahead and make another set of regulations that will be about what kind of conditions may or may not be imposed on a grant of planning permission (s14 of the Act). Regulations can be made now too, governing the circumstances when the agreement of an applicant has to be obtained in advance and when it does not, to the terms of a pre-commencement condition. Also, s1 is now in force so that a local planning authority has to have regard to a ‘post-examination’, unmade neighbourhood development plan (‘neighbourhood plan’) as a material consideration in the determination of planning applications. With s3 now in force too, it is the case that just prior to a draft neighbourhood plan being made after succeeding at referendum, the Plan forms part of the development plan (but it would not continue to do so if the LPA were to decide it should not be made). S16 of the Act has now amended the New Towns Act 1981, so that the SoS can transfer the overseeing of new town development corporations established under that Act to one or more local authorities covering the New Town area. The SoS can also now make further Regulations for how a local authority should then go about overseeing the New Town’s development. This guide provides a summary of the measures in the Neighbourhood Planning Act 2017 that relate to development management procedures in England, other than those for planning conditions – covered in Lichfields’ ‘essential guide to future changes - the use of conditions’.  Also affecting development management are the Act’s provisions that will alter: the status and materiality of draft neighbourhood plans at given stages; requirements for notification for neighbourhood planning bodies; and local authority planning registers.  The new legal requirement to further amend the Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended), to alter permitted development rights (PDRs) for pubs and other drinking establishments, has already been fulfilled by amendments in force from 23 May. Lichfields’ ‘essential guide to changes to plan-making’ covers the changes relating to local plans and neighbourhood plans that will arise from the Act. Changes to the materiality and status of advanced draft neighbourhood plans Once section 3 is brought into force, a draft neighbourhood development plan (‘neighbourhood plan’) will become part of the development plan just before being made, once it has succeeded at referendum (but it would not continue to do so, if the local planning authorities (LPA) decides it should not be made). And prior to that, a ‘post-examination’, unmade neighbourhood plan will have to be taken into account in the determination of planning applications when section 1 is brought into force. The Act defines a post-examination neighbourhood plan and stipulates when a draft neighbourhood plan would cease to be considered to be a post-examination neighbourhood plan.  These sections should be read in the context of past appeal decisions not always being in line with advanced draft neighbourhood plans (see the Housing and Planning Minister’s jovial reference to a ‘Malthouse clause’), and a perception that some authorities are not doing enough to support neighbourhood planning (hence the other neighbourhood planning provisions in the Act). The inclusion of an unmade plan in the statutory development plan is a significant conceptual and legal change, but not an enormous leap in practice, as it is likely that very significant weight would be attached to such an advanced draft neighbourhood plan as a material consideration in any event. Indeed, at the fourth sitting of the Commons Committee stage  the Housing and Planning Minister quoted para 216 of the NPPF, regarding the weight to be given to emerging plans, in order to “help” the Committee to understand the provision. And regarding the weight to give a draft plan, Baroness Parminter noted at Committee Stage in the Lords: “Clause 1 says that local authorities “must have regard” to neighbourhood development plans, but there are no sanctions. Furthermore, this applies only to post-examined plans, whereas case law says that draft plans should be taken into account.” The Housing and Planning Minister had previously explained that (the then) Clause 1 was about giving communities the confidence, through legislation rather than guidance, that their neighbourhood plans “will get proper consideration in planning decisions, where the plan is material to the application” because the hours communities put in to preparing them should be “recognised in the system at the earliest possible opportunity”.  Therefore the provision in section 3 in particular is more about motivating communities and ‘sending a message’, than about making a significant change to the weight to be given to neighbourhood plans. As Mr Barwell said towards the end of the Bill’s passage: “We want to ensure that this process helps people who give up their spare time and put effort into producing neighbourhood plans to get the result they want in terms of how their local community develops.” Notification arrangements for sites where there is a neighbourhood plan, or a post-examination draft neighbourhood plan Once all of section 2 is in force, LPAs must notify parish councils and neighbourhood forums of applications for planning permission, permission in principle (PIP) or reserved matters approval (and any alterations to those applications), on land where there is a draft neighbourhood plan, or a post-examination draft neighbourhood plan, unless the parish council has advised the LPA that it wishes to be notified of certain applications, or does not wish to be notified at all.  The requirement does not extend to technical details consent applications that follow PIP, which is an interesting omission given the Government’s intention that mandatory engagement at the technical details stage will be “proportionate” and its desire to promote engagement with neighbourhood planning to LPAs. This provision, which amends/will amend Schedule 1 of the Town and Country Planning Act 1990, will operate alongside the pre-existing requirement in Schedule 1 to notify parish councils and neighbourhood forums of planning applications and reserved matters approval applications (and any alterations to those applications) where they have requested to be notified. The amendment to Schedule 1 in force thus far, only has the effect of allowing changes to the automatic notification procedure to be set out in the amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 (Articles 25 and 25A).  We are seeking clarification as to which sub-sections of section 2 have been brought into force, and understand that it is section 2(1-5). Planning register Section 17 permits regulations requiring LPAs to include prior approval applications, decisions and notifications on their planning registers –whether the authority has responded or not to an application.  Regulations may also stipulate the information to be included in the register, and the circumstances when an application or notification may be removed from it.  The inclusion of this information on the planning register is intended to lead to the accurate recording of the number of homes permitted via PDRs. The section requiring LPAs to include prior approval applications and prior notifications on the planning register has commenced (new section 69A of the Town and Country Planning Act 1990), but a development order prescribing the information to be recorded is outstanding. A draft Town and Country Planning (Development Management Procedure) (England) (Amendment) Order - 2017? December 2016’s ‘The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’(the ‘further information document’) includes a draft amendment to the Town and Country Planning (Development Management Procedure) (England) Order 2015, which relates solely to housing prior approval applications that will create additional dwellings.  If it were brought into force as drafted, LPAs would have to keep all information submitted with, or in respect of a housing prior approval applications in its planning register, including any statement specifying the net increase in dwellinghouses proposed by the development, and any legal agreements. Given that the amendment to the Order has been drafted, and the May Government’s (and probably the new Government's) desire to monitor the number of new homes being built or converted, one can expect this provision to be fully in force by the end of the year. Changes to permitted development rights for drinking establishments During the passage of the Act, there was much debate regarding PDRs and pubs, and some MPs and Lords expressed strong concerns regarding pub closures.  The outcome of these debates is that the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) was legally required to be amended as set out by section 15. The main change is that the previously available PDRs for the change of use or demolition of drinking establishment have been removed.  The Lords had sought to delete Use Class A4*, drinking establishments, but the Government thought that this would risk unintended consequences, and would limit opportunities for pubs to expand without seeking planning permission. The Town and Country Planning (General Permitted Development) (England) (No. 2) (Amendment) Order 2017 As required by the Neighbourhood Planning Act 2017, and within the timescale promised in the Lords, amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 removing certain PDRs for pubs will come into force on 23 May 2017.   The Lichfields’ ‘Guide to the Use Classes Order’ has been updated to reflect this change. The Town and Country Planning (General Permitted Development) (England) (No. 2) (Amendment) Order 2017 (‘GDPO amendment’) removes PDRs to change drinking establishments (use class A4) to use class A1 (shops), A2 (financial and professional services), or A3 (restaurants).  Temporary rights to change from a drinking establishment, or ‘a drinking establishment with expanded food provision’ to a school, and to use classes A1, A2 or A3, will also be removed at the same time (Article 3 of the Amendment Order). ‘Drinking establishments with expanded food provision’, where a pub or other drinking establishment use operates concurrently with a use falling within Class A3, is a new typology that has been introduced by the GPDO amendment.  ‘Drinking establishments with expanded food provision’ are not defined further. New Class AA PDRs added to Part 3, Schedule 2 will permit change of use from drinking establishments to drinking establishments with expanded food provision, with no limitations or conditions.  Drinking establishments with expanded food provision may not change to a restaurant without applying for planning permission. Planning permission will also be required to demolish a drinking establishment, or a drinking establishment with expanded food provision. As a consequence of the removal of these rights, the current requirement to establish with the LPA whether the drinking establishment has been nominated as an asset of community value will be removed, as it is no longer relevant. There are transitional arrangements: where a request for confirmation from the LPA as to whether the building has been nominated or listed as an asset of community value was made more than 56 days before 23 May, the development can begin.  For demolition, prior approval must have been granted, determined to not be required or deemed granted before 23 May. New permitted development right Class AA is postponed for 18 months, for buildings which fall within the scope of an Article 4 direction that withdraws permission to change use from Class A4 to Class A3.  This will give LPAs sufficient time to draft and then advertise any amendments to an Article 4 Direction, or prepare any new Article 4 Directions that are considered necessary. Compensation rules relating to Article 4 directions are being amended to reflect the new Class AA right. Local accountability for New Town Development Corporations Section 16 will allow the transfer of functions under the New Town Act 1981 from central government to one or more local authorities within the area proposed for a New Town. Regulations can then be made for how the local authority should oversee the New Town's development. It was added to the Bill at Third Reading in the Lords, in an amendment tabled by Lord Taylor, Lord Best and Lord Lucas, and followed an earlier debate during the passage of the Bill, which led to subsequent discussions between Lord Taylor and DCLG officials, and to referencing the (then future) amendment (being referred to) in the Housing White Paper (para 1.36). Consequently the amendment was accepted by the Government. At Third Reading Lord Taylor argued: “In the modern world, it is not right that in seeking to deliver a new settlement through a new town corporation to ensure that it is delivered at quality and pace to meet local needs a local council would surrender all the powers to the Secretary of State... This is a localising measure. It hands really strong power to communities to ensure that new towns are delivered at quality.​” The draft regulations will need to be approved by resolution of each House of Parliament. New government - new DCLG ministers and a new approach? In my view, a new Conservative government would be unlikely to change tack on the development management changes outlined here (despite the pub PDR changes being rushed through).  Furthermore, Gavin Barwell has dropped a number of heavy hints about his desire to return to the Department of Communities and Local Government, and should this happen, an altered approach is even less likely. Expect full steam ahead from 19 June. Sources Improving the use of planning conditions, public consultation 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 *Use Class A4 ‘drinking establishments’ includes public houses, pubs, and bars