We Need To Talk About Conditions

Can we scratch beneath the surface in relation to this issue about pre-commencement planning conditions?
We’re told that the Neighbourhood Planning & Infrastructure Bill will contain provisions:
“To ensure that pre-commencement planning conditions are only imposed by local planning authorities where they are absolutely necessary.

Excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission.

The new legislation would tackle the overuse, and in some cases, misuse of certain planning conditions, and thereby ensure that development, including new housing, can get underway without unnecessary delay.”



Odd given that the Planning Practice Guidance already advises:
“Care should be taken when considering using conditions that prevent any development authorised by the planning permission from beginning until the condition has been complied with. This includes conditions stating that ‘no development shall take place until…’ or ‘prior to any works starting on site…’.

Such conditions should only be used where the local planning authority is satisfied that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would have been otherwise necessary to refuse the whole permission. A condition precedent that does not meet the legal and policy tests may be found to be unlawful by the courts and therefore cannot be enforced by the local planning authority if it is breached.”



What punishment is now planned for an LPA (and, indirectly, the applicant) where an unnecessary pre-commencement condition is imposed? If it includes the remedy of judicial review, putting the permission itself at risk, that is exactly the sort of trip hazard that nobody needs and an early candidate perhaps for the next red tape challenge. 
Setting to one side for a moment whatever the specific issue may be in relation to pre-commencement conditions, there is a lot of noise about the increasing number of conditions attached to planning permissions for all but the most straight-forward of development projects. Richard Harwood QC has written an interesting piece on the issue.

In my view there are various “real world” causes:
– LPAs’ internal computerised lists of template conditions make it easy for them to err on the safe side.
– experience tells us that if matters are left unregulated they will not necessarily be addressed. 
– the much wider scope of issues that are material planning conditions and that therefore are drawn into the LPA process (with wish lists of recommended conditions often chipped into by internal and external consultees). 
– (particularly in relation to EIA development) the need to define what has been permitted and the way in which mitigation, assumed in the assessment, will actually, come forward. 
– a pragmatic deal between applicant and LPA to “park” particular outstanding issues, which might otherwise have been grounds for refusal if not satisfactorily resolved, to be addressed later in the development process. 
– the sheer scale and complexity of many modern development projects. 
Turning specifically to pre-commencement conditions, in my view there are, again, a number of issues:
– all of the above
– LPAs that seek for issues to be resolved earlier than is necessary or practical in the development process. 
– often a failure to consider how a project will be phased and whether a matter should be addressed prior to commencement of each phase rather than upfront in relation to the whole of what may be a longterm development that is to be built out by a variety of parties. 
As well as potentially causing delay to any start on site, unnecessary front loading of costs and premature closing-off of technical and design solutions, the other real pain caused by pre-commencement conditions is that they need to be addressed prior to any early material operation so as to keep the planning permission alive (and risk any actual work being held by the courts not to amount to a valid material operation). Of course, we all get the motivations behind “use it or lose it” but equally:
– permission implementation deadlines are increasingly tight as against what needs to be done ahead of the diggers and cranes. 
– a planning permission is not to be lost lightly, given the huge capital investment it will often represent and the political and legal uncertainties that have been successfully navigated to reach that point. Indeed, if it could be lost lightly, that capital would be unlikely to be invested in the first place. 
All of these motivations, all in my view reasonable, lie behind the continuing drive to reduce pre-commencement conditions to a minimum. 
However, let’s not throw the baby out with the bath water. Can we dare to hope for provisions in the forthcoming Bill that do not give rise to the risk of judicial review and that do not reduce the scope for an LPA to negotiate pragmatic solutions rather than be driven either to refuse permission or achieve its objectives by the backdoor (ie by section 106 agreement)? 
Simon Ricketts 6.6.16
Personal views et cetera

CIL BILL?

Pretty good CIL scoop by EGi, not yet denied by anyone.

Apparently two of the CIL working group’s recommendations are that:

– section 106 agreements rather than CIL should be the delivery mechanism for infrastructure in relation to large developments;

– there should be a nationally standard low level of CIL.

The recomendations may be included in the forthcoming Neighbourhood Planning and Infrastructure Bill to the extent that primary legislation would be needed.

They certainly chime with the BPF’s own consultation response.

The cynical would point to CIL working group chair Liz Peace’s former role as chief executive of, er, the BPF. However, that would disregard the strength and independence of the group as a whole on CIL issues:  Gilian Macinnes (PAS), Steve Dennington (Croydon Council), Tom Dobson (Quod), Andrew Whitaker (Home Builders Federation), John Fuller (leader, South Norfolk District Council) and Michael Gallimore (Hogan Lovells). When the real report comes out, it will be worth reading and let’s hope that the Government don’t mangle whatever its recommendations turn out to be.  

But I’m excited already. Wouldn’t be great if we could move to a two tier model:

– for most developments, no section 106 agreements at all, replaced by a combination of (1) CIL and (2) wider use of standardised conditions than planning obligations to secure contributions and site-specific infrastructure. Authorities run scared from using conditions to secure contributions and affordable housing, sometimes without reason (Planning Practice Guidance: “where the six tests will be met, it may be possible use a negatively worded condition to prohibit development authorised by the planning permission until a specified action has been taken (for example, the entering into of a planning obligation requiring the payment of a financial contribution towards the provision of supporting infrastructure“)

– for major complex developments (eg opportunity area sites in London, urban extensions and new settlements), no CIL, replaced by section 106 agreements documenting the most efficient mechanism for delivering necessary infrastructure in a timely way? Not to reduce the financial burden for developers but rather to make their money work harder and go further with efficient timely infrastructure delivery. No more problems over regulations 122 or 123, no more uncertainty as to whether infrastructure will come forward hand in hand with development. 

Section 106 agreements aren’t going away any time soon though: given their forthcoming role as delivery mechanism for starter homes, and with no sign any time yet of any standardised drafting from the Government to discourage the inevitable goldplating and gaming that will arise.  Shame that. 

…

I fell off the L is for Localism blog a few years ago. Starting over. 

Simon Ricketts 3.6.16

Personal views et cetera