A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

Deemed discharge of conditions – does it actually work?

The procedure for deemed discharge of conditions came into force on 15th April. It is contained in the new Town and Country Planning (Development Management Procedure)(England) Order 2015 (“DMPO”). DMPO is a development order made under (amongst other powers) s.59 of the Town and Country Planning Act 1990. It seems to me that there is a serious flaw in the deemed discharge provisions.

In simple terms they work like this. An application is made in the usual way for the approval under the condition. Any time after six weeks later, a “deemed discharge notice” can be given by the applicant to the local planning authority under Article 29 specifying a date on which deemed discharge will take effect. That date is no earlier than when the period for determination in Article 27 elapses (eight weeks) and 14 days “after the day immediately following that on which the deemed discharge notice is received. (Actually all the periods are calculated in ways like that, so we need to read the small print carefully. Serving notice a day early is not a good idea.) Unless the local planning authority give notice of their decision on the Article 27 application before that deemed discharge date, or a later date agreed in writing, deemed discharge occurs on the date specified in the deemed discharge notice.

So, thinking about the small print, the deemed discharge is all subject to Article 30. This says that deemed discharge does not apply to conditions in the exemptions listed in Schedule 6. To address the environmental impact directive problems (encountered especially in the review of minerals permissions conditions over the past twenty years or so) the exemptions include permissions for EIA development, and development which would have been EIA development but for the condition. There are other exemptions for environmental and sensitive matters. And it does not apply to the approval of reserved matters. This post does not address them all.

But I do want to address a very significant exemption in Schedule 6 (paragraph 10). This states that the deemed discharge procedure does not apply to conditions attached to the grant of planning permission under a development order pursuant to s.59 of the 1990 Act. DMPO is just such a development order, made under s.59 – see my opening comments, and the deemed discharge provisions must be contained in a development order (see s.74A). DMPO gives the procedure for the grant of planning permission. As s.59 says:

“A development order may either—
(a) itself grant planning permission for development specified in the order … ; or
(b) in respect of development for which planning permission is not granted by the order itself, provide for the granting of planning permission by the local planning authority … on application to the authority … in accordance with the provisions of the order.”

Category (a) is an order like the “Permitted Development Order” (defined by DMPO to mean the GPDO 2015). Category (b) is the ordinary grant of permission. The grant of planning permission is made under DMPO. So paragraph 10 of Sch 6 appears to mean that all conditions on ordinary planning permissions are outside its scope. If that is right, deemed discharge does not work. If there is a clear contrary view I would be delighted to hear it – the comments facility is open.

Of course, we know what Para 10 is meant to be addressing; it should refer to conditions under Schedule 2 of the Permitted Development Order. Elsewhere in DMPO, the Permitted Development Order is correctly referred to. For example, in Article 27 where the time periods for decisions on conditions applications are made.

A simple amendment to paragraph 10 would deal with the problem, and I would urge DCLG to make that amendment without delay. Not to do so will leave a flaw to be exploited by those who would seek to stop development. It will be a trap for unwary and busy lawyers. It will create uncertainty, which funders will hate. The development industry will be very disappointed by this problem. I have not alerted DCLG to this view separately, though I will be sending them a link to this, because my experience of doing so on other errors in the past has been highly unsatisfactory.

3 comments to Deemed discharge of conditions – does it actually work?

  • Paula

    What about planning permission given prior to 2015? I applied to have my conditions discharged over two and a half years ago and I am still waiting. The council have set in writing that I have met 25 of the 26 conditions but are refusing to agree on the last condition which relates to a S.106 which my PP only loosely defined – well I believe it is clearly defined but the council disagree with my interpretation. Can I start my build anyway and if not, what do I do?

  • Richard W

    Bryan

    The interpretation section of the Order 2(2) to 2(7)covers this point in connection with electronic communications.

    But if we’re talking about hardcopy mail I think this has to refer to the actual date of receipt (not the date of posting) so as a minimum the ‘day after the day received’ would have to be at least 2 days after posting. But I’ve already had one case where the developer assumed this and then posted their notice second class, delaying delivery and rendering the notice unlawful by dint of the developer failing to corectly forecast the time required for delivery.

    Imagine what could happen with the Christmas post if you’re relying on hardcopy mail and crystal ball gazing as to when the LPA will receive your notice. . .

    All good fun and probably the best solution is to embrace electronic communication and avoid the pitfalls of the GPO.

  • Bryan Cadman

    Whilst not having an answer to the main point raised in the blog, the second paragraph and the calculating the 14 day period does raise a question (or two). I had assumed that the ‘day after receipt’ date would be the next working day. But the DMPO seems silent on this, and you could have a scenario of a notice being received by the local planning authority this Friday (1 May) with a start date of 2 May, despite the LPA being closed until 5 May. I had thought the next working day was established practice, but not sure where I can find it. The other question is about being ‘received by the LPA’. If it is a postal application, and post goes to a central office before being distributed to the planning office a day (or two) later, is the later date the start date?

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