Deemed discharge of planning conditions to go ahead

The government has confirmed its proposals to deem discharge where the local authority does not respond to developer requests to sign off conditions within a ‘reasonable time’. The measure is hoped to speed up development and create more certainty for developers.

What is the background to the consultation response?

In July 2014, the government published the consultation paper ‘Technical Consultation on Planning’, which sought views on proposals for the procedural detail of the deemed discharge measure.

Unnecessary delays in the discharge of planning conditions can prevent developments with planning permission from commencing and can therefore stall crucial housing and other developments. To address this, the government is seeking enabling powers to introduce the deemed discharge of certain planning conditions in the Infrastructure Bill, which is currently going through Parliament.

How and when will the deemed discharge apply?

As is often the case with government proposals, much of the procedural detail - including, crucially, the time period for non-determination - is yet to be worked out in secondary legislation.

A deemed discharge would only apply to planning conditions that are attached to planning permission when it is granted and that require the further approval of the local authority on matters of detail. Where not excluded and subject to following the correct procedure, a deemed discharge would mean that the condition would be treated as approved (deemed to be discharged) where a decision has not been made on the application by the local planning authority within a 'reasonable time' period.

It is intended that a deemed discharge could only be activated by the applicant serving a notice, to ensure that local authorities receive notice of an applicant’s intention to rely on a deemed discharge, and allow the applicant to proceed where no decision has been made within a reasonable time.

What safeguards are proposed?

The consultation response explains that the measure would retain 'robust safeguards' including:

  • appropriate exemptions for the most sensitive types of condition, eg those attached to development subject to an environmental impact assessment, likely to have a significant effect on a qualifying European site, designed to manage flood risk or require a planning obligation to be entered into
  • a notice procedure, to 'ensure that a deemed discharge will never be a surprise to a local planning authority', and
  • flexibility to promote discussion between the local planning authority and the applicant (a deemed discharge would need to be activated, ie it would not be automatic and timings could be changed if there is agreement)

What will be the impact on local authorities?

Certain authorities have responded critically to the proposals, asserting that the measure could divert their focus from other planning priorities. They argued that delays associated with discharging conditions were often caused by third parties and resource constraints, ie for reasons beyond their control.

The government was keen to emphasise that deemed discharge is not about penalising local authorities. 'It is about ensuring that they hit the deadlines they are already working towards, and providing the applicant with greater certainty as to when a decision can be expected'. It also stated that the proposal should not undermine the local authority's ability to consider the matter properly within a reasonable timescale, or to refuse approval where it was not satisfied with the proposal, or to enforce where a developer has not complied with the substantive condition.

What will be the consequences for developers and third parties?

The response demonstrates that most prospective applicants and developers seem to support the introduction of deemed discharge. Many of these respondents felt that it could help to limit delays currently experienced in discharging conditions and reduce consequential increased and unnecessary costs.

It is also hoped that it should give developers more certainty in respect of when decisions can be expected.

To further support the measure and ensure that it operates effectively, the government intends to publish planning guidance on its expectations of third parties in cases where their advice is sought. There is also flexibility within the procedure to enable the applicant and the local authority to agree a longer time period to consider the application where the authority needs more time to seek advice from a third party.

Filed Under: Planning

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