DCLG to pursue deemed discharge of planning conditions despite council opposition
The Government intends to press ahead with proposals for the deemed discharge of certain planning conditions, despite opposition from local authorities.
The announcement was contained in the Government’s formal response to a consultation on the procedural detail of the measure.
The Infrastructure Bill contains enabling powers that would allow the introduction of deemed discharge.
Where not excluded and subject to the following of the correct procedure, a deemed discharge would mean that the planning condition would be treated as approved where a decision has not been made by the local planning authority within a prescribed period.
In their responses to the DCLG consultation, most prospective applicants and those that represent other interests welcomed the introduction of the measure. They pointed to the difficulties that delays in discharging planning conditions could cause “at a stage in the development process where such delays can have a heavy impact on both those carrying out development and communities who have a legitimate expectation that development will be completed swiftly”.
However, many local authorities cited delays caused by third parties and resource constraints as reasons for delays in discharging planning conditions. It was also suggested by some local authorities that the measure could divert their focus from other planning priorities.
The Government insisted that deemed discharge was not about penalising local authorities.
“It is about ensuring that they hit the deadlines they are already working towards, and providing the applicant with greater certainty as to when a decision can be expected,” it said.
“This proposal will not undermine the ability of the local authority to consider the matter properly within a reasonable timescale, or to refuse approval where it is not satisfied with the proposal or to enforce where a developer has not complied with the substantive condition.”
The consultation also revealed:
- Many respondents were supportive of exempting conditions relating to flood risk management;
- There was additional support for exclusions for other types of conditions, including conditions relating to land contamination, highway safety and other forms of environmental mitigation and remediation (e.g. in relation to noise and air quality), archaeology investigation and other historic assets, and development that has an impact on Sites of Special Scientific Interest;
- A significant majority (73%) of respondents were supportive of the proposal that deemed discharge should be an applicant option activated by the serving of a notice, rather than applying automatically.
- On timings, a majority (59%) of respondents agreed with the proposal to allow the applicant to notify the local authority of its intention to activate a deemed discharge after a period of six weeks with a minimum notice period of two weeks.
The DCLG said it intended to introduce supporting legislation on the procedural detail of a deemed discharge once the primary power was confirmed.
“The Government considers that the proposed deemed discharge measure would make an important contribution and give much needed certainty for all parties around when decisions can be expected,” the Department said.
“The measure would retain robust safeguards (appropriate exemptions for the most sensitive types of condition, a notice procedure to ensure that a deemed discharge will never be a surprise to a local planning authority) and flexibility to promote discussion between the local planning authority and the applicant (a deemed discharge would need to be activated and would not be automatic and timings can be changed if there is agreement).”
The DCLG said it would put in place the following exemptions:
- All conditions attached to development that is subject to an Environmental Impact Assessment;
- All conditions attached to development that is likely to have a significant effect on a qualifying European site;
- Conditions designed to manage flood risk;
- Conditions that have the effect of requiring that an agreement under Section 106 of the Town and Country Planning Act 1990 (as amended), Section 278 of the Highways Act 1980 to be entered into; and
- Conditions requiring the approval of details for outline planning permissions required by reserved matters.
It also proposed to exempt:
- Conditions relating to the investigation and remediation of contaminated land;
- Conditions relating to highway safety;
- Sites of Special Scientific Interest; and
- Conditions relating to investigation of archaeological potential.
The response said these exemptions would ensure that important protections for the areas of greatest sensitivity were maintained.
The DCLG added that it would publish guidance on its expectations of third parties in cases where their advice is sought. Applicants and local authorities will meanwhile be able to agree a longer time period to consider an application where the authority needs more time to seek advice from a third party.
