Planning & Environment

Earlier this year, the Department for Communities and Local Government consulted on a raft of proposals intended to speed up the planning system in England and Wales.

It said that that unnecessary delays in the discharge of planning conditions can prevent developments with planning permission from commencing – and can therefore prevent the delivery of new homes and other development that is “critical to the country’s future prosperity”.

One of the proposals was the introduction of a new ‘deemed discharge’ measure for planning conditions – so where a developer requests sign-off of a planning condition attached to a permission and the local planning authority (LPA) fails to respond to their request within ‘a reasonable timescale’, the condition will be deemed to be approved (i.e. deemed to be discharged), subject to certain provisos of course.

Earlier this month, the Government confirmed that it was pushing ahead with the proposal.

What does this mean in practice?

It won’t apply to all conditions – EIA development; development subject to the Habitats Regulations; development in areas of high flood risk; conditions that have the effect of requiring a Section 106 or Section 278 agreement to be entered into, and conditions requiring approval of details for outline planning permissions required by reserved matters are all to be exempt from the procedure. Also proposed to be exempt are: conditions relating to the investigation and remediation of contaminated land; conditions relating to highway safety; SSSIs, and conditions relating to investigation of archaeological potential.

With the exception of the EIA, European sites and SSSIs exemption, the intention is to apply the exemptions to those conditions that relate to the reason for the exemption, rather than to all the relevant conditions attached to the permission.

Deemed discharge won’t apply automatically where the LPA fails to determine an application within the prescribed period – the applicant will have to ‘activate’ the deemed discharge by serving notice on the LPA.

The Government proposed in the consultation that an applicant would be allowed to notify the LPA of its intention to activate a deemed discharge after a period of 6 weeks, with a minimum notice period of 2 weeks.

The framework for deemed discharge is to be set out in primary legislation (the Infrastructure Bill); the procedural detail is to be set out in subsequent secondary legislation.

Might something similar be introduced in Scotland? The tensions are certainly the same north of the border – developers want to move on developments but experience delays (or red tape) to get them to the point of breaking ground, or substantially progressing developments; and planning authorities are under increasing pressure to improve service delivery as their resources are further squeezed. With a focus on improved service delivery in Scotland, it’s certainly food for thought.

Let us know what you think!

Planning & Environment

Planning & Environment

Brodies’ planning and environment teams represent clients involved in Scotland's biggest planning issues, offering expert advice to help clients navigate the sometimes daunting Scottish planning law landscape. The Brodies planning team was ranked top tier in both The Legal 500 and Chambers & Partners directories.
Planning & Environment