You've just received your planning permission and, in your excitement to start building, you accidentally skipped over the pre-commencement conditions and began breaking ground. Only to realise that you didn’t discharge your pre-commencement planning conditions. What can you do at this point?
As a planning consultant, when a client comes to us saying they have commenced development or even finished development, without discharging pre-commencement conditions (DOC) there are hundreds of different scenarios that run through our heads. The main issue that comes to light is that the development may not have been lawfully implemented and you may be on the receiving end an enforcement notice.
A pre-commencement condition must be discharged prior to any works starting on site, this includes demolition, digging a trench, or any works that would usually be considered to ‘commence development’. They differ from other types of conditions such as standard conditions which do not need prior approval from a Local Planning Authority to be discharged (ex. time limits, opening hours, etc), or conditions which can be discharged later in the development process (ex. prior to occupation).
There are three routes one may take if they have not discharged a pre-commencement condition:
In the first, a Lawful Development Certificate (LDC) can be submitted outlining the three-step test built on the Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296 case.
Initially, one must determine if the wording of the condition has been done so as to totally prevent any development without compliance with the condition.
Next, one must identify if the pre-commencement conditions breached ‘go to the heart’ of the planning permission. There is a variety of case law that outlines what types of pre-commencement conditions are considered to ‘go to the heart’ of the permission. In paragraph 19 of the judgement of the Meisels & Anor v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1987 (Admin) case Ockleton states:
“The question whether a condition ‘goes to the heart of the planning permission’ is not merely a matter of construing the grant of permission. The grant may give reasons why the condition is imposed; but those reasons cannot resolve the question by themselves. Rather, the question can be answered only by a fact-sensitive enquiry into the terms of the condition in the context of the permission, and the permission in its planning context. In other words, this question is a matter of planning judgement. It is not for the Court: it is for the Inspecter; and unless the Inspector’s decision on the issue is at fault in a Wednesbury sense, the Court will not intervene”.
For example, in many cases a pre-commencement condition requiring a schedule of materials to be submitted would not go to the heart of the permission, as materials are often considered to not form an important part of a development. However, an exception of that could be if the site was located within a Conservation Area or was a Listed Building, where materials are pertinent and may indeed go to the heart of the planning permission.
Finally, a number of exceptions to the Whitley principle have emerged through case law and it should be stated if one or more of these exceptions apply.
Based on the above, an LDC can be submitted which argues that the conditions are not true condition precedent and do not go to the heart of the planning permission, therefore lawfully implementing the planning permission and allowing the retrospective discharge of the pre-commencement conditions.
If the pre-commencement conditions breached clearly do not go to the heart of the permission, the second option is to contact the LPA or the case officer and see if they are willing to accept a retrospective discharge of conditions (DOC). The LPA may consider this an acceptable route depending on the context of the permission and reasoning for the pre-commencement condition. For example, an LPA recently approved a DOC application in which our client had removed asbestos in the building, for health concerns, prior to discharging the pre-commencement condition requiring a Construction Method Statement.
If the pre-commencement condition is found to be a condition precedent, or the LDC was refused, the third option is to resubmit the planning application (along with the additional information that was required by the condition so as to limit the requirement for any additional conditions to be attached to the decision notice of the new planning permission).
It is important to discharge pre-commencement conditions even on small projects that you think the LPA will not check on, as not discharging pre-commencement conditions can invalidate your planning permission. This can cause many issues when selling your property and can also lead to enforcement action.
Furthermore, if you have not ‘lawfully commenced development’ and your permission expires, there is a chance that you have effectively ‘lost’ that permission unless you obtain an LDC as outlined above.
In all cases, discharging your pre-commencement conditions prior to commencing development is the easiest and safest route to take. Although a discharge of conditions application does take time and may cause project delay, these pre-commencement conditions must be fully discharged in order to lawfully implement a planning permission.
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At Bluestone Planning, we specialise not only in securing planning permissions for new developments, extensions and changes of use but also in ensuring that every planning application is thoroughly prepared and compliant with the necessary regulations. A key part of this process is ensuring that pre-commencement conditions are properly discharged, as well as utilising validation checklists to streamline applications and avoid costly delays. With our expertise, we guide clients through the complexities of evolving planning regulations, ensuring that all documentation is in place to support a successful and lawful application.
For more information on how we can assist you with planning permissions, contact us at Bluestone Planning by calling +44 1235 766825 or emailing admin@bluestoneplanning.co.uk
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