When approving an application for planning permission, listed building consent or advertisement consent, the local planning authority may attach “such conditions as they think fit” on the decision letter in order to enhance the quality of the development and mitigate the adverse effects of the development.
According to Government guidance on the use of planning conditions, they should be kept to a minimum and should only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.
A pre-commencement condition is a type of condition imposed on a grant of full planning permission which must be complied with either: (a) before any building or operation comprised in the development is begun, or (b) where the development consists of a material change of use of any buildings or other land, before the change of use is begun.
The City Council endeavours to keep the number of conditions, and in particular pre-commencement conditions, to a minimum so as not to prohibit work from going ahead as soon as possible after planning permission has been granted. We have recently reviewed our list of frequently used conditions and have reduced the number of pre-commencement conditions. However, in some cases it is necessary to attach pre-commencement conditions where the requirements of the condition (including the timing of compliance) are so fundamental that it would have been otherwise necessary to refuse the application.
From Monday 1 October 2018, new regulations come into effect which mean that the local authority cannot impose a pre-commencement condition without first seeking the written agreement of the applicant to the terms of the condition.
The procedure is set out as follows:
1. The local planning authority may notify applicants of proposed pre-commencement conditions, setting out their reasons for them, and giving applicants 10 working days to respond.
2. Applicants must provide a ‘substantive response’ within that 10 day period (stating that they do not agree to the imposition of the proposed condition, or providing comments on it); if they do not provide such a response, planning permission may be granted with the proposed pre-commencement conditions in place, and without the applicant's consent.
3. Where a substantive response has been provided, the local planning authority can amend the condition, remove it, make it a post-commencement condition, or refuse the application.
The notice from the local planning authority must be in writing and must include:
(a) the text of the proposed pre-commencement condition;
(b) the full reasons for the proposed pre-commencement condition, set out clearly and precisely
(c) the full reasons for the proposed condition being a pre-commencement condition, set out clearly and precisely and
(d) the date by which any response must be received which must not be before the last day of the period of 10 working days beginning with the day after the date on which the notice is given.
Please note, in the event that the applicant provides a substantive response to the notice but agreement cannot be reached between the City Council and the applicant with regard to the need for a pre-commencement condition, it is likely that permission for the entire development will be refused.
In order to assist applicants, we have prepared a list of frequently-used pre-commencement conditions with reasons for those conditions and justification for why they must be complied with either before the development is begun:
In addition to the frequently-used conditions set out above, the City Council or external consultees (for example, Historic England, Environment Agency, Natural England, London Underground, Crossrail, Transport for London, Thames Water) may, depending on the nature of the development, propose attaching bespoke pre-commencement conditions which are necessary to make the development acceptable in planning terms.
The requirement for the City Council to seek the applicant’s agreement to a pre-commencement condition relates only to applications for full planning permission; the City Council may attach pre-commencement conditions to other types of consent (such as Listed Building Consent) without the applicant’s agreement.