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COVID-19: Planning permissions: Deemed discharge.

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At this critical time, when Local Planning Authorities (“LPAs”) are contending with the fallout from the COVID-19 crisis, the deemed discharge provisions introduced in 2015, to reduce delays in the planning process are a valuable mechanism to secure approval of planning conditions without having to wait for a condition discharge application to be approved by the LPA, thereby enabling development to continue.

There is likely to be an increase in the use of “deemed discharge” provisions in the current economic climate, particularly in relation to pre-commencement conditions.

Pre-commencement Conditions and Implementation

In order to lawfully implement a planning permission, it is necessary, as a first step and subject to limited exceptions, to discharge all pre-commencement conditions, before a material start is made on the approved scheme.  A pre-commencement condition is a condition which requires details (e.g. proposed materials finishes) to be approved before a material start (e.g. the digging of a trench) is made on the approved scheme.  Ordinarily, and subject to a few exceptions, unless all pre-commencement conditions have been discharged, the carrying out of a material operation may render the development unlawful and the works in question would not be authorised by the planning permission.

Condition Discharges

In order to discharge planning conditions, a condition discharge application must be submitted to the LPA for approval. The LPA is required to give notice of its decision within 8 weeks of receipt of the condition discharge application or any longer period agreed with the applicant, which, for complex applications, may be several months.

Given that LPAs will be overstretched and under-resourced due to the Coronavirus crisis, condition discharge approvals could be delayed, which would in turn delay or even stall the development programme. The deemed discharge provisions are a way around this,  which can unlock the delay and allow development to progress.

If the deemed discharge procedure is engaged, the LPA’s consent, agreement or approval to any matter as required by the condition is deemed to have been given and the condition is discharged without a formal discharge notice, unless it has been agreed with the Council that the deemed discharge provisions do not apply. If the LPA does not discharge the application within 12 weeks, then they must return the fee to the applicant without further delay.

Deemed Discharge Procedure  

  • The deemed discharge process is governed by a strict time-sensitive procedure and can only be triggered after the 8 week determination period for the condition discharge application has passed.
  • Deemed discharge needs to be activated by the applicant by serving a “deemed discharge notice” on the LPA, at least 6 weeks after the application is received by the LPA (or any shorter period agreed).
  • The deemed discharge notice must:
    • provide details of the application submitted;
    • identify the planning condition to which it relates;
    • confirm that no appeal has been made in respect of the application for non-determination; and
    • specify the date on which the deemed discharge is to take effect.

The date specified in the notice must be no earlier than either 14 days after the deemed discharge notice was received by the LPA, or the end of the 8 week period for determination, whichever is later.

If the applicant has served a deemed discharge notice and the LPA fails to determine the application by the date specified in the notice or such later date as may have been agreed in writing, approval is deemed to have been given with the consequence that the condition is deemed to be discharged.

Exceptions

The deemed discharge provisions do not apply to conditions relating to the environment (EIA development), flood risk, Sites of Specific Scientific Interest, contaminated land, archaeology, highways, approval of reserved matters, planning obligations, development orders, simplified planning zones or development zones and crown development or government authorisation.

Getting it right

Timing is absolutely critical, to ensure that the relevant time periods are calculated correctly when issuing a deemed discharge notice. Solicitors acting for purchasers and funders will, in the absence of a condition discharge notice, raise enquiries about the condition discharge status and check that the deemed discharge procedures have been followed properly to ensure that the relevant conditions have been correctly discharged.

This update is for general purpose and guidance only and does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. No part of this update may be used, reproduced, stored or transmitted in any form, or by any means without the prior permission of Brecher LLP.