The government's slightly startling solution, set out in a September 2016 consultation paper and subsequently laid down in last year's Neighbourhood Planning Act, is to prescribe that councils can only impose such pre-commencement conditions if the applicant has agreed to them in writing.
On its own, this approach doesn’t stop negotiations over pre-commencement conditions dragging out indefinitely. So the government is due to introduce a notice procedure through the 2017 act which, in effect, would force to lay their cards on the table and say whether or not they accept terms proposed by the local authority. If they do, well and good, and they can be assured that permission will be granted on that basis. If they don’t, or don’t respond, they risk the prospect of outright refusal and the uncertainties and expense of the appeal process. There is a halfway house whereby applicants can just provide comments, thus triggering further negotiations and potentially a further notice period, which rather seems to defeat the object of speeding up the process.
This week, the Ministry for Housing, Communities and Local Government threw an extra ingredient into the pot when it consulted on draft regulations designed to bring these provisions in the 2017 act into force. They would give applicants just ten working days to respond to proposed pre-commencement terms, ruling out any leeway for councils to extend this period by agreement. The ministry says it is proposing this deadline in order to avoid undue delay in determining whether a pre-commencement condition can be imposed and "help facilitate timely determination of planning applications".
Fair enough, but ten days isn’t a lot of time for applicants to put together the "substantive response" demanded by the regulations. Some may be tempted to bank a permission on the terms offered and then apply for conditions to be lifted or varied further down the line. Those who refuse to accept the terms offered will need to bear in mind that appeal inspectors could still impose councils’ proposed conditions if they meet the tests set out in the National Planning Policy Framework. Tactics will remain crucial in the pre-commencement game.
The notice mechanism gives planning authorities a potentially useful tool to force the issue in protracted negotiations, but they need to use it with care if they don’t want to upset the applecart on basically desirable developments. In drafting conditions, they need to be sure they can defend them on appeal if necessary. They would also be well advised to start putting systems in place now to handle the notice procedure, especially given that some applications already in the pipeline could be caught as and when the finalised regulations – which are out for consultation until 27 February – and the inevitable associated guidance take effect.
Bryan Johnston, consultant editor, Planning // email@example.com