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Deemed discharge of planning conditions: good news for developers?

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Posted by Claire Waring on 29 April 2015

Claire Waring - Development and Securitisation Lawyer
Claire Waring Partner

The Town and County Planning (Development Management Procedure) (England) Order 2015 (SI 2015 /595) (“the Order”) came into force in England on 15 April 2015. It introduced a number of changes and of the most interest to developers will be those provisions relating to the deemed discharge of planning permission conditions.

These provisions have been introduced in an attempt to provide a degree of certainty around the timing of discharge of planning conditions.

The procedure

The Local Planning Authority ("LPA") must determine an application for consent, agreement or approval of a planning permission condition within 8 weeks of receipt of the developer’s application for the same (or within such longer period as the LPA and the developer may agree in writing).

Under the Order, if the LPA fails to give notice of its decision within the 8 week (or such other longer agreed) period, then the developer can now avail itself of the deemed discharge provisions in respect of certain types of planning permission condition.

In order to benefit from the deemed discharge provisions the developer must serve a “'deemed discharge notice” (“DDN”) on the LPA. The DDN must be served by the developer on the LPA no sooner than 6 weeks (or shorter period if agreed) after the developer’s initial application for consent, agreement or approval has been received by the LPA.

The form of the DDN is prescribed by the Order and must:

  • identify the application to which it relates;
  • confirm that no appeal has been made for non-determination of such application; and
  • specify the date on which the deemed discharge is to take effect.

The specified date of effect of the deemed discharge cannot be before the later of:

  • the expiry of 14 days after the receipt by the LPA of the DDN; or 
  • the end of the 8 week period determination (or such longer period as may have been agreed by the LPA and the developer).

The deemed discharge takes effect on the date specified in the DDN unless the LPA notifies its decision before such date.

The benefits

The benefits of the deemed discharge procedure are obvious. It’s a process by which the developer can, in respect of certain types of planning permission and planning permission condition, force the LPA’s hand and avoid delay. It will also be useful where developers have to evidence discharge of planning permission conditions to funders, purchasers and end-use occupiers.

The limitation

The limitation of the deemed discharge procedure is that it cannot be used in respect of all planning permissions and all types of planning permission condition. The exemptions are set out in full in Schedule 6 of the Order and include, amongst others:

  • Conditions attached to a planning permission relating to a development that is subject to an Environmental Impact Assessment
  • Conditions designed to manage flood risk
  • Conditions attached to an outline planning permission requiring the approval of reserved matters
  • Conditions attached to a planning permission relating to development within a Site of Special Scientific Interest
  • Conditions relating to the investigation and remediation of contaminated land
  • Conditions requiring the completion of a Section 106 Agreement or a Section 278 Agreement.

Conclusion

While the deemed discharge procedure is no doubt good news for developers, it is likely to be of assistance only in relation to those more straightforward and less contentious schemes.

In relation to the more complex and / or controversial schemes, if the LPA fails to notify its decision in respect of a developer’s application for discharge a planning permission condition within the 8 week (or longer if agreed) period, then it is likely that the developer’s only option remains to pursue an appeal for such non-determination.

Tags: Real estate

About the author

Claire specialises in residential development and social housing portfolio securitisation. Claire’s clients include developers, promoters, land owners and Registered Providers.

Claire Waring

Claire specialises in residential development and social housing portfolio securitisation. Claire’s clients include developers, promoters, land owners and Registered Providers.

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