If you’re a developer trying to discharge some pre-commencement conditions with a local planning authority in order to be able to start on site and you’re experiencing delays, what – if anything – can you do to speed up this process? Martha Grekos explores the options
One area of frustration for developers are delays for the discharge of planning conditions to enable progression and completion of their developments. What can be done? In such situations the deemed discharge provisions, introduced via the Town and Country Planning (Development Management Procedure) (England) Order 2015, to reduce delays in the planning process can be a valuable option to secure approval of planning conditions without having to wait for a condition discharge application to be approved by the local planning authority. Under Articles 27-30 of the 2015 Order, if an applicant has submitted an application to discharge planning conditions which remains undetermined by a local planning authority, the applicant can seek to have the condition deemed to be discharged.
There is a process that must be followed for this. The applicant must apply to the local planning authority to discharge the relevant condition. The local planning authority is then required to determine the application within eight weeks of the day following receipt. However, if it remains undetermined after six weeks, the applicant can then trigger the deemed discharge provisions at any time by sending a prescribed notice to the council.
There are, though, various exempt sites and exempt conditions from being able to use these provisions. For instance, all conditions relations to EIA development and sites with protected status under EU law are exempt. As are conditions relating to the assessment or remediation of contaminated land. As such, the deemed discharge route is not a useful mechanism for you on this occasion given you are trying to discharge a contaminated land pre-commencement condition, but one to be borne in mind for other conditions that are not exempt conditions (i.e. flooding, contaminated land, archaeology, highways, reserved matters, planning obligations and any development order conditions)
Martha Grekos is a partner at DAC Beachcroft LLP
