Deemed discharge of planning conditions – Good news for developers?
On 15th April 2015, the Government issued a new version of the Town and Country Planning (Development Management Procedure) Order (“the Order”). Most of what is contained in the latest Order is a consolidation of the previous Order of 2010 but the major new inclusion is a new provision for the deemed discharge of planning conditions where the Local Planning Authority (“LPA”) have failed to give notice of their decision within 8 weeks following the date when the application for discharge was received by the LPA. The new procedure is applicable to planning conditions where the application for the grant of planning permission was made on or after the 15th April 2015.
In order for a developer to take advantage of the new procedure, the applicant must submit a deemed discharge notice to the LPA, at least 6 weeks after the application to discharge the condition has been received by the LPA. The notice must provide details of the discharge application and identify the condition to which it relates. It must also specify the date on which the deemed discharge will take effect, which must not be before the expiration of the 8-week determination period or must be at least 14 days after receipt of the deemed discharge notice by the LPA, whichever is later. Following the notice, the condition is deemed to be discharged if the LPA does not then give notice of its determination by the date which the applicant specifies in the deemed discharge notice.
Certain conditions remain exempt from these provisions and they are listed in Schedule 6 of the Order. These include: development subject to an Environmental Impact Assessment and conditions relating to flooding, sites of special scientific interest, contaminated land, archaeology, highways, approval of reserved matters, conditions requiring a planning obligation, Development Orders and simplified Planning Zones or Enterprise Zones. Furthermore, such provisions do not apply to Crown development or Government authorisation.
The latest Order seeks to promote timely determination of condition discharge applications by local authorities. It will also be useful where developers have to evidence discharge of planning permission conditions to funders, purchasers and end-use occupiers. However, there are many types of development that are not currently included within the new deemed discharge provision. Therefore, although the deemed discharge procedure is good news for developers, it is likely to only affect more straightforward and less contentious schemes. In the event where a larger, more complex scheme falls under an exemption and the LPA fail to determine the application to discharge, then it is likely that the developer’s only options is to pursue an appeal for the non-determination, other than to continue to chase the LPA for determination.