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Discharge of Planning Conditions

11 Aug 2015

As we all know, in the vast majority of cases where development or changes of use of property are involved, planning permission is required from the local planning authority. Inevitably, any planning permission that is granted will be subject to conditions. Some of these conditions are straightforward, such as the requirement to implement the planning permission within 3 or 5 years of its grant. Others, however, can be  more complex and require the consent or approval of the local planning authority to the details of what is to be developed or constructed or certain things are required to happen before proceeding to the next stage.

When it comes to selling, letting or mortgaging the property where planning permission has been granted, it is vital to be able to show that the relevant planning conditions have been satisfied. This is particularly important where a condition states that something has to be done or some further approval of the local planning authority is required before either the development can be commenced or the property occupied or used for the permitted purpose. Failure to be able to show that the conditions have been satisfied can bring the transaction to a halt.

Planning conditions tend to fall into two different types – on the one hand there are those that control how the development is carried out or how the property is to be used; on the other, some conditions require the approval from the local planning authority before the development can start. It has been usual as each planning condition comes to be dealt with for that evidence to be accumulated in a piece-meal fashion. Where conditions state that the development is to be carried out in accordance with the approved plan, local planning authorities do not necessarily have the staff to check the particulars of compliance.

Since April this year, the planning legislation has been changed by the introduction of new regulations which enable compliance with planning conditions to be dealt with in a more systematic, regulated and efficient basis. In short, at the appropriate time, an application can be made to the local planning authority seeking confirmation that identified planning conditions have been satisfied. The benefit of this procedure is that the local planning authority has 8 weeks within which to respond. If they fail to do so, their failure to respond can be appealed against.


However the real benefit of the new regulations is that, having sent in the application for confirmation that identified planning conditions have been satisfied, you can now serve a further notice which will deem the local planning authority to have approved the identified conditions, unless they respond to the original application to discharge the conditions in the meantime.

This further notice, which could result in the conditions being deemed to have been discharged, cannot be made earlier than 6 weeks since the original application to discharge the conditions. It needs to be in a particular form and to provide specified information.

This can therefore be produced to a prospective purchaser, tenant or funder as evidence that the identified planning conditions have been satisfied. These procedures can only be used where the planning application, giving rise to the planning permission concerned, was made before 15 April 2015.  It will therefore not help where the application for planning permission was made before that date.

These procedures cannot be used to secure evidence of discharge of all planning conditions. There are some planning conditions which because of the sensitive nature of their subject matter, the local planning or other authorities will require positive action by way of discharge, rather than being discharged by default. The types of planning condition where this procedure cannot be used include those dealing with environmental impact assessments, flooding and contaminated land, highways and archaeology.

These regulations are part of the Government’s attempt to make the planning process easier, simpler and more straightforward so as to minimise the obstacles that are seen to be put in the way of development and in particular the need to assist the market in building more houses.  The procedure, therefore, is to be welcomed.

For further information, please contact Richard Freeman-Wallace, Commercial Property Partner at Hay & Kilner

Call: 0191 232 8345

Email: richard.freeman-wallace@hay-kilner.co.uk