Ongoing delays discharging planning conditions? Deemed discharge could help

As the UK continues its recovery out of the pandemic, many under-resourced council planning teams are struggling with their workloads, causing long delays on various applications. A particular area of great frustration for developers are delays for the discharge of planning conditions to enable progression and completion of their developments.

What can be done? In such situations the deemed discharge provisions, introduced in 2015 to reduce delays in the planning process, can be a valuable option to secure approval of planning conditions without having to wait for a condition discharge application to be approved by the council.

What is deemed discharge of planning conditions?

Articles 27-30 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (2015 Order) introduced the deemed discharge of planning conditions. Under the provisions, if an applicant has submitted an application to discharge planning conditions which remains undetermined by a council, the applicant can seek to have the condition deemed to be discharged.

How do you apply for deemed discharge?

The applicant must apply to the council to discharge the relevant condition. The council is then required to determine the application within eight weeks of the day following receipt. However, if it remains undetermined after six weeks, the applicant can then trigger the deemed discharge provisions at any time by sending a prescribed notice to the council.

The notice must specify the following:

• The planning condition it relates to, along with details of the discharge application
• The date on which deemed discharge is to take effect, which must be a date after the eight-week time-period has expired and at least 14 days after the council receives the notice. The notice must also confirm, if the period of eight weeks has elapsed, that the applicant has not submitted an appeal against non-determination under section 78(2) Town and Country Planning Act 1990 (“1990 Act”). If the specified date arrives without the council informing the applicant of their decision, then the condition is deemed to have been discharged.

Are there exceptions?

There are various exceptions to the provisions in the form of specific types of sites or conditions for which the deemed discharge procedure cannot be used. These are summarised below.

Exempt sites

• Environmental Impact Assessment (EIA) – all conditions relating to EIA development and sites with protected status under EU law
• Sites of Special Scientific Interest (SSSI) – all conditions relating to a planning permission which is likely to have a significant effect on a SSSI or would be likely to if the site did not have the protection of the condition being discharged
• Simplified Planning Zones and Enterprise Zones – all conditions attached to planning permissions for development on land in these zones
• Crown development or government authorisation – any conditions attached to grants of planning permission for urgent crown development or government authorisation.

Exempt conditions

• Flooding – conditions designed to mitigate the risk of flooding
• Contaminated land – any conditions relating to the assessment or remediation of contaminated land
• Archaeology – any conditions relating to archaeological plans or mitigation
• Highways – any conditions relating to the access between the development and the highway or requiring a s.278 agreement
• Reserved matters – any condition relating to the approval of a reserved matter in an outline planning permission
• Planning obligations – any condition which requires a s106 planning obligation to be entered into
• Development orders – any condition relating to a development order (section 59, 1990 Act), special development order (section 264, 1990 Act), local development order (section 61A, 1990 Act) or neighbourhood development order (section 61E, 1990 Act). These remove the need to apply for planning permission for certain types of specified development.

Conclusion

The deemed discharge provisions provide a useful mechanism to combat delays caused by councils failing to determine an application within the eight week period. This may become particularly critical in the case of pre-commencement and pre-occupation conditions where delays can have significant consequences to the financials and timescales of the development.