Neighbourhood Planning Act 2017: New rules on pre-commencement conditions
In this second blog article on the Neighbourhood Planning Act 2017 (NPA), undoubtedly one of the most discussed measures during its passage onto the statute book were those concerned with planning conditions. Interestingly, whilst the NPA is broadly applicable to England and Wales these provisions relate only to England and are another example of the ever increasing divergence in planning law with Wales.
The NPA amends the Town and Country Planning Act 1990 to allow increased regulation in relation to:
- Prescribed conditions prevented from being imposed in any circumstances on permissions;
- Prescribed conditions only able to be imposed in prescribed circumstances; and
- Preventing conditions at all being imposed in specified circumstances.
While these powers may seem far-reaching, regulations made must be necessary to make the development acceptable in planning terms, relevant to the development, relevant to planning, sufficiently precise, enforceable and reasonable in all other respects.
These criteria replicate the tests of validity in the National Planning Policy Framework but are now set out on a statutory basis for the first time. This move from policy to legislation mirrors that made in relation to planning obligations in 2010 and is welcomed. Any regulations made must ensure that those tests of a validly imposed condition are not undermined.
The increasing preponderance of pre-commencement conditions has been a bug-bare of developers for a long time and considered to unnecessarily delay commencement of development. The NPA introduces a "remedy" to this perceived issue by providing that a pre-commencement condition must be agreed with the applicant before it is imposed.
While this gives applicants opportunity to mould draft permissions into a manageable shape from a commercial perspective it also means that more extensive discussion and negotiation may be necessary before permission can be granted.
In any case developers may feel forced to accept the proposed pre-commencement conditions to avoid refusal of the application where the planning authority disagree with the developers view. This provision is likely to lead in some instances to tactical negotiations.
An alternative outcome is that planning authorities may draft de minimis carve outs allowing very minor work that would constitute a material operation to allow implementation in the knowledge that the conditions will still have to be discharged extremely early in the life of the construction of the development. It may be just as difficult to discharge the condition at that point undermining the Government wish to speed up delivery of development.
It will be interesting to see if these provisions have the intended effect the Government wishes them to have. The detail of the regulation will no doubt be critical but the entry into statute of the tests of a valid condition is desirable from the perspective of clarity and robustness.
As regards to the changes to pre-commencement conditions developers will need good professional input to advise on and negotiate conditions precedent, whether it is tactically advisable to accept such a condition, risk appeal or adopt a practical approach in any given scenario.