The Neighbourhood Planning Bill

Government proposes further measures to improve the use of planning conditions

by Phil Grant

The Neighbourhood Planning Bill was published by the Government earlier on this month, aimed largely at supporting increased housebuilding and providing local communities with more of a say over new developments. A number of the measures contained within the Bill seek to ensure that planning conditions which require developers to take action before work commences on site are only used “where strictly necessary”, so that once a developer has planning permission they can get on and start building as soon as possible.

The Government has already taken steps to try and address the excessive use of pre-commencement conditions, including the introduction last year of the new deemed discharge procedure and the requirement for local planning authorities to provide specific justification in decision notices for imposing a pre-commencement condition. Notwithstanding these changes, concerns remain that too many “overly restrictive and unnecessary” conditions are routinely attached to planning permissions, which can often lead to a significant delay in the delivery of critical new development.

Two new measures to improve the use of planning conditions are being put forward within the Bill. Firstly, it is proposed that pre-commencement conditions should only be used where they have the prior written agreement of the applicant. Secondly, it is proposed that the Secretary of State will be able to expressly prohibit the use of certain planning conditions in “targeted circumstances”, through the introduction of new legislation.

In theory, the first measure should provide applicants with an earlier opportunity to challenge any pre-commencement conditions that may be unnecessary. It will however be important to ensure that the requirement to hold negotiations with the local planning authority to agree on the form and content of pre-commencement conditions does not create an additional layer of complexity at an earlier stage in the planning application process. In circumstances where agreement could not be reached on a condition thought necessary by a local planning authority, there would surely be a risk that a planning application could be delayed or, worse still, flatly refused.

Quite how the second measure would play out in practice is not really clear at this stage. The Government is likely to focus on prohibiting the use of conditions which do not pass the key tests outlined within the National Planning Policy Framework, namely that conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Defining the precise “targeted circumstances” in which a certain type of planning condition would or wouldn’t be acceptable may well prove to be difficult given the significant variation that exists between different development sites and different development proposals. A planning condition that may be fully justified in the context of one particular planning application may be wholly unnecessary for another.

The overall principle of introducing additional controls to ensure conditions are only used where absolutely necessary is to be welcomed and will be of benefit to many developers. The proposed changes should require local planning authorities to give more thorough consideration to the conditions that are applied to planning permissions, and also to engage more with applicants to address any potential concerns at an early stage. The devil can often be in the detail however, and we will no doubt have a better indication of how effective these changes are likely to be once the Bill has made its passage through parliament and any new legislation enacted.

A consultation on the measures in the Neighbourhood Planning Bill is open until 2nd November 2016.

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Published: 29/09/2016


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