The Landmark Practice is often asked to advise on actions required to discharge pre-commencement planning conditions. As, by their very nature, such conditions delay commencement of works on-site, it is often a matter of some urgency to undertake the tasks and prepare the documents that are required to be submitted, to get the 8 week determination period rolling.
Ecology pre-commencement conditions
In many cases these are relatively straightforward tasks, and commonplace requirements include preparation and submission of the documents such as Landscape and Ecology Management Plans (LEMPs) and Construction Environmental Management Plans (CEMPs) or Biodiversity Enhancement Plans and implementation of agreed strategies for site clearance.
Occasionally, however, condition discharge can be complicated by seasonal restrictions on site clearance or tasks such as reptile translocations which can only be undertaken at certain times of the year.
Failure to follow planning conditions can result in a planning breach. The LPA can serve an enforcement notice which could require you to put things back as they were.
Another aspect to be aware of, in terms of the robustness of any planning consent, is the need to avoid conditions that make European protected species surveys the subject of a planning condition (planning authorities are legally obligated to consider this information at time of determination and if this is not undertaken, the planning consent could be legally challengeable).
Reviewing pre-commencement conditions
From October 2018, amendments to legislation* were introduced that require local planning authorities to serve notice on applicants for any pre-commencement conditions that it wishes to impose, where this has not already been agreed in writing, unless a specific set or circumstances apply. This does not give developers carte blanche to set their own rules, if an agreement cannot be reached the planning application can be refused. This does, however provide an opportunity to review and comment on draft pre-commencement conditions, with regard to the planning condition tests and any supporting technical information that has been prepared to inform the planning application.
Further details on the process of notifying and agreeing pre-commencement conditions are set out within National Planning Practice Guidance (NPPG).
Our advice to all of our clients is to be sure to review your planning conditions carefully, and if in any doubt, we at The Landmark Practice will always be pleased to review planning conditions on our client’s behalf.
*Neighbourhood Planning Act 2017 (Commencement No. 5) Regulations 2018[ii]