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Oliver Bussell

Partner - Sevenoaks and Ashford

4th October 2018

Lawfulness of planning conditions – some help for developers

Pre-commencement conditions on planning permissions are the fly in the ointment of development consent. “You can start work!”, they proclaim, before turning around, Columbo-style and announcing, “Just one more thing, sir…. drainage survey, please…. archaeological survey, please… travel plan, please.

As of 1 October it was made illegal to impose a pre-commencement (P-C) condition on development without the consent of the applicant (or in default by their silence following pre-notification). Previously these conditions had very little in the way of legal test applied to them – some well-worn tests of reasonableness and proportionality which emerged from a now-cancelled Government circular and which now appears in the National Planning Policy Framework. But the discretion was left to the council generally.

This change in the law gives a quandary for developers as to what they do where a local authority insists on a P-C condition unreasonably. They might have no problem with it; they might have a problem but decide not worth arguing about; or they might have to appeal a refusal based on their lack of agreement to such a condition. These are high stakes because of the delays (and the cost) inherent in an appeal. I hope the effect of the regs is to focus minds on what should properly be being sought here. You can understand why groundworks shouldn’t be taking place while the archeological significance of a site is unknown. But the detail of a travel plan should have no bearing on whether works are being carried out or not.

It might just be that local authorities’ minds are focused more closely on conditions that have traditionally been imposed for no better reason than “that’s the way we do things around here”. There’s more of that sort of attitude around than some councils want to admit!

Form more information on any issues surrounding planning law contact Oliver Bussell. e. oliverbussell@rixandkay.co.uk

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