13 October 2014

Developers will be interested in the progress of the Infrastructure Bill which is today (14 October 2014) being reviewed in Committee by the House of Lords. The Bill contains proposals for a 'deemed discharge' of planning conditions which require the consent, agreement or approval of the local planning authority (LPA). Considerable delay and cost result when LPAs fail to respond promptly – or at all - when asked to confirm that conditions to a planning consent have been satisfied. Evidence from looking at applications to discharge planning conditions in 2008 suggested that around half took longer than six weeks to determine. The proposed change should mean that the LPA will not be able to stop development on the basis that the scheme did not have formal approvals required by certain conditions and that sales will not be held up whilst awaiting evidence of LPA approval.

The suggested procedure outlined in the Bill and in the recently closed DCLG consultation on it is that, the applicant having applied to the LPA for a discharge, if the LPA does not notify its decision within six weeks after the application to discharge the condition was received by the LPA, the applicant has the option to notify the LPA that their approval will be deemed to have been given if no decision is reached within a further two weeks. Secondary legislation may provide that the period of time for the LPA decision can be extended by agreement between the LPA and the applicant, who may also agree, before or after the grant of planning permission, that the deemed discharge provisions do not apply to certain conditions. In any event it is proposed the deemed discharge rules will not apply to all conditions or types of planning consent. The suggested exclusions include where the development is subject to an Environmental Impact Assessment, is in a high flood risk area or where the conditions relate to a s.106 or s.278 agreement or require the approval of details for outline planning permissions required by reserved matters.

After today the Bill has to complete all its stages through the House of Commons before it becomes law, so deemed discharge is still some way off – especially as the Bill’s progress might be delayed by debate over its more controversial provisions, the new “fracking” rights. However the intention is to have it in force before the general election and developers will be hoping this can be achieved.

For further information please get in touch with Ross Polkinghorne in Real Estate or Elizabeth Dunn, Julian Boswall or Gary Soloman in our Planning team.

Key contact

Ross Polkinghorne

Ross Polkinghorne Partner

  • Built Environment
  • Development and Regeneration
  • Infrastructure

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