Policy Briefing: Bill aims to tackle councils' 'overuse' of planning conditions

The Neighbourhood Planning Bill proposes giving the secretary of state powers to veto planning conditions, Laura Nation reports.

Development: government hopes policy changes will speed process
Development: government hopes policy changes will speed process

Q What changes would the Neighbourhood Planning Bill make to the way local authorities impose planning conditions?

The bill proposes allowing the secretary of state to make regulations that would stop councils imposing prescribed conditions and permit or prohibit certain conditions being applied in specific scenarios. He could only make such regulations if he is satisfied that they pass the tests set out in the National Planning Policy Framework – they must be necessary, reasonable and relevant to the scheme in question. The bill also provides that planning permission subject to a pre-commencement condition may not be granted without the written agreement of the applicant.

What is the rationale behind the proposed changes?

The changes seek to tackle what the government describes as the "overuse and misuse of certain planning conditions" that prevent or delay development. They are intended to balance councils’ ability to impose conditions to achieve sustainable development with measures to ensure that schemes can proceed without delay by allowing applicants to challenge any conditions that they believe could be discharged later in the process.

What are the implications of the proposed changes for local planning authorities?

Ostensibly, reducing the number and scope of pre-commencement conditions to be discharged should lessen the administrative burden on councils. But the consultation proposes that authorities should be responsible for obtaining the applicant’s written agreement to any pre-commencement conditions.

Planning permission subject to such conditions could not be granted without this agreement. If an agreement cannot be reached between the parties, the authority would have the option to either change the relevant condition, allow the developer to comply with it after the development is under way, or remove the condition. It could also refuse the planning application if it considers the condition necessary to make the development acceptable.

While authorities will be required to concede some control over the checks and balances that they are permitted to impose on consents, the proposed changes suggest that they will retain appropriate protection for important matters such as heritage, natural environment and flood risk.

What are the implications of the changes for applicants?

Applicants will welcome a reduction in the number of restrictive and unnecessary conditions that are imposed on planning consents. However, there will be instances in which an applicant and a local authority cannot agree on the detail of proposed mitigation, or where the imposition of a more flexible pre-commencement condition enables an applicant to secure a consent while acknowledging the need for future discussions. This flexibility may be threatened by the introduction of legislation that prohibits conditions in targeted circumstances.

Furthermore, given that local authorities retain a right to refuse consent, applicants may find that they are forced to accept an unwanted condition to obtain consent without having to bear the extra costs and delays that are likely to result from an appeal.

Will the proposals be effective in speeding up development?

Development is often stymied by pre-commencement conditions that are time-consuming and costly to discharge, but are essential to the release of much-needed funding. The scope of the subordinate legislation will be key to determining whether or not the proposals will expedite development.

If the list of acceptable pre-commencement conditions is too restrictive, applicants will be required to resolve issues before determination rather than rely on more flexible conditions that could be addressed later on. The bill’s explanatory text suggests that the process of agreeing pre-commencement conditions should become a routine part of the dialogue between applicants and local authorities. However, there is nothing to guard against protracted negotiations, other than applicants’ readiness to accept conditions with which they do not agree or to pursue an appeal. Either way, this could result in lengthy delays to development.

Laura Nation is a planning associate at law firm Clyde & Co

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