At the beginning of May, we outlined the potential implications of a consultation, which was part of wider revisions to the National Planning Policy Framework. These revisions were linked to the Chancellor’s announcement in his Autumn 2017 Budget that planning reform is required to address the chronic shortage of housing in the UK.

The consultation launched in January 2018 sought views on prohibiting the imposition of a pre-commencement condition on a grant of planning permission without the written agreement of the applicant. This is to prevent conditions being imposed before a development can begin, where they are not justified and will delay delivery and drive up cost. This except in circumstances where the regulations require pre-conditions to be imposed. This includes environmental protection considerations, such as protected areas and historical features.

The situation has moved on and in May the Government issued its response.

The Government decided that from 1 October 2018, pre-commencement conditions are no longer permitted, unless they have first been agreed by the applicant. Applicants have 10 working days to comment on any proposed pre-commencement conditions. If the applicant objects to the condition, Local Planning Authorities (LPA) are not allowed to impose it unless it is an exception.

The Government has said that where conditions are required by LPAs, there is already a statutory requirement for local planning authorities to give full reasons for any condition imposed on a grant of planning permission and if it is a pre-commencement condition, why that is the case. It says it is not necessary to issue a notice if written agreement can be reached between an applicant and the LPA. It has included the requirement for LPA to give full reasons in the new regulations.

When an applicant objects to a pre-condition under the terms of the new Town and Country Planning (Pre-commencement Conditions) Regulations 2018 they must submit a “substantive response”. This means a response, which either states that the applicant does not agree to the imposition of the proposed condition, or provides comments on the proposed condition. The Government says it encourages applicants to do this, but it has not made this a statutory requirement and places the onus on LPAs to explain why a pre-condition is necessary. If applicants need more than 10 days to respond to a proposed condition, they must say so in a comment on the proposal. Commenting constitutes a substantive response and prevents the LPA from granting an application with pre-conditions, until a full response has been received. If the LPA has given a full explanation and no response at all, is received within 10 working days, the LPA can proceed to determine the application. The 10 days starts the day after the date the LPA gave notice. Where there are environmental protection considerations involved, the need for LPAs to seek applicant’s agreement on pre-conditions, will not prevent it from refusing planning permission.

This is a key point. The term ‘environmental protection’, refers to areas or features of natural heritage or importance. The term also includes contaminated land and Section 170 of the NPPF confirms this. Therefore, where applications involve potentially contaminated land, pre-conditions can be imposed.

But it is probable that the new regulations have set the cats among the pigeons across LPAs and planning heads will interpret and enforce them in different ways. That could range from shying away from imposing pre-planning conditions, to carrying on as before. There is no doubt a degree of confusion reigns and some contaminated land and environmental health officers might be unsure of their role in the planning process going forward.

Ground & Water’s advice is planning applications that involve contaminated land, should be accompanied by the minimum of a desk study, but ideally a full site investigation and proposed remediation plan. The danger of not doing this, is some LPAs might follow the new regulations to the letter, avoid pre-planning conditions and default to a refusal of the application, under the justification of environmental protection considerations.

Despite a certain degree of ambiguity in the new regulations and differing interpretations, once there have been a few refusals and appeals, in time a status quo will establish itself. Ground & Water aims to help its clients not to be part of that process.