Planning Conditions UK — Pre-Commencement Conditions, Discharge, and Breach

Types of Planning Condition — Pre-Commencement, Pre-Occupation, and Ongoing

Planning conditions under s.70 Town and Country Planning Act 1990 (TCPA 1990) and the statutory tests in s.72 TCPA 1990 (must be necessary, relevant, enforceable, precise, and reasonable) can be divided into three broad categories: (1) Pre-commencement conditions: conditions that must be discharged before any development works begin. These are the most critical for project programming — commencing development before a pre-commencement condition has been formally discharged is a breach of planning control. Under s.100ZA TCPA 1990 (inserted by the Housing and Planning Act 2016), local planning authorities can only impose pre-commencement conditions with the written agreement of the applicant, or in circumstances where the condition is considered necessary for a specific planning reason. Common pre-commencement conditions: approval of materials; approval of design details; submission of a construction management plan; ecological surveys (protected species surveys — bat surveys must be done in the right season; great crested newt surveys); archaeological investigation; ground contamination investigation; surface water drainage strategy; archaeology watching brief; (2) Pre-occupation conditions: conditions that must be discharged before the development is first occupied (used). Common examples: completion of access works and visibility splays; installation of cycle storage; submission and approval of a landscaping scheme; completion of fire engineering conditions; installation of EV charging points; submission of an energy statement; (3) Ongoing/operational conditions: conditions that apply continuously during the operation of the development. Common examples: hours of use (e.g. residential occupation only; no commercial use); noise mitigation measures (e.g. acoustic glazing to be maintained; extraction systems to be operated in accordance with an agreed scheme); number and types of occupants (occupancy conditions); use class restrictions.

• Pre-commencement conditions: must be formally discharged before any development works begin; commencing before discharge = breach of planning control regardless of whether the works comply with the condition's requirements
• s.100ZA TCPA 1990 restriction: LPAs can only impose pre-commencement conditions with the applicant's written agreement or where necessary for a specific planning reason (inserted by Housing and Planning Act 2016 to limit unnecessary pre-commencement conditions)
• Pre-occupation conditions: must be discharged before first occupation of the development; failure to discharge a pre-occupation condition means the property cannot lawfully be occupied
• Ongoing/operational conditions: apply throughout the life of the development; compliance is a continuous obligation; breach of an ongoing condition is an ongoing breach of planning control
• Condition numbering: conditions are numbered in the decision notice; always read each condition carefully — the trigger point (before commencement; before occupation; at all times) and the specific requirement must both be identified

Discharging Planning Conditions — The Application Process

To discharge a planning condition (obtain the local planning authority's formal approval that the condition has been satisfied), the landowner or developer must submit a formal application to discharge conditions under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPEO 2015). The process: (i) Application: submit a discharge of condition (DOC) application to the LPA using the standard form on the Planning Portal (England) or equivalent. The application must identify the planning permission number, the conditions to be discharged, and provide the supporting information required by each condition (e.g. bat survey reports; drainage strategy; materials schedule; contamination site investigation); (ii) Determination period: the LPA has 8 weeks to determine a DOC application for a householder development and 8 weeks for other development (or 13 weeks for major development — though DOC applications are treated as minor matters and are generally determined within 8 weeks); (iii) Fee: a fee of £43 per request for approval of householder development; £128 for other development (2024 fee rates; the developer is making one application per condition or per group of conditions); (iv) Decision: the LPA can approve the discharge (confirm the condition is satisfied), approve it with minor modifications, or refuse to discharge (if the information provided is insufficient). A refusal of DOC is a planning decision and can be appealed to the Planning Inspectorate; (v) Appeal: if the LPA refuses to discharge a condition, or if the applicant disagrees with conditions imposed on a discharge approval, they can appeal to the Planning Inspectorate under s.78 TCPA 1990. The appeal must be made within 6 months of the LPA's decision (or 8 weeks if no decision was received); (vi) Modify or remove a condition: an application can be made under s.96A TCPA 1990 to modify or remove a planning condition without submitting a new planning application — provided the modification is minor and does not materially affect the development.

• Discharge of condition (DOC) application: submit to the LPA via the Planning Portal; identify the planning permission, the conditions, and provide the supporting technical information required by each condition
• Determination period: 8 weeks for householder and other development DOC applications; LPA must determine within this period or the applicant can appeal
• Fee: £43 per request for householder development; £128 for other development (2024 rates; one request can cover multiple conditions submitted in one application)
• s.96A TCPA 1990 — non-material amendment: allows minor modifications to planning conditions (and planning permissions) without a full new planning application; useful where conditions impose impractical requirements that can be resolved by minor adjustment
• DOC refusal appeal: appealable to the Planning Inspectorate under s.78 TCPA 1990 within 6 months of the LPA's decision; or within 8 weeks if no decision was received within the determination period

Grampian Conditions and Occupancy Conditions

Two specific types of planning condition that frequently arise in landlord/property development contexts are Grampian conditions and occupancy conditions. Grampian conditions: a Grampian condition is a negative condition that prevents development from commencing (or being occupied) until a specified event has occurred that is outside the applicant's direct control — for example, a highway improvement that requires third party land, or a utilities connection that requires works by a statutory undertaker. The name derives from the case of Grampian Regional Council v City of Aberdeen [1984] HL. A Grampian condition is valid and effective even where the triggering event may never occur — provided it is not impossible for the condition ever to be discharged. Common Grampian condition examples: 'No dwelling hereby permitted shall be occupied until the off-site highway works shown on Drawing No. X have been completed'; 'No development shall commence until a legal agreement under s.106 TCPA 1990 has been entered into relating to the provision of affordable housing'. The practical effect is that the developer must arrange for the third party works or agreements before they can commence or occupy. Occupancy conditions: an occupancy condition restricts who can occupy the development or in what circumstances. Common types: (i) Agricultural occupancy condition (AOC): restricts occupation to a person (or their dependants) employed or last employed in agriculture or forestry locally; a legacy from historic rural agricultural dwellings; AOC properties are difficult to sell at market value — they are worth significantly less on the open market; (ii) Key worker conditions: restrict occupation to defined key workers (e.g. NHS staff; emergency services; teachers); (iii) Elderly or special needs occupancy: restrict occupation to elderly persons or people with specified needs; (iv) Single household: restrict occupation to a single household — prevents HMO use. Removing an occupancy condition requires a planning application to vary or remove the condition under s.73 TCPA 1990; the LPA will consider whether the original planning reason for the condition still applies.

• Grampian condition: a negative condition preventing commencement or occupation until a specified event (often requiring third party action) has occurred; valid even where the triggering event may not be in the developer's direct control (Grampian Regional Council v City of Aberdeen [1984] HL)
• Grampian condition — practical effect: developer must arrange for the off-site works, s.106 agreement, or third party event before the condition can be discharged; can delay projects significantly where third party coordination is required
• Agricultural occupancy condition (AOC): restricts occupation to a person employed or last employed in agriculture or forestry locally; legacy conditions on older rural residential buildings; can significantly reduce the open market value of affected properties
• Removing an occupancy condition: requires a s.73 TCPA 1990 planning application to vary or remove the condition; the LPA will consider whether the original planning reason still applies; removal is not guaranteed and may be refused
• Single household condition: some planning permissions for residential development include a condition restricting occupation to a single household — preventing the use of the property as an HMO; landlords converting to HMO must check for such conditions

Breach of Planning Condition — Enforcement, BCNs, and Consequences

A breach of a planning condition is a breach of planning control — which is the same category as carrying out development without planning permission. The consequences for a landlord who commences development before discharging a pre-commencement condition, or who operates a property in breach of an ongoing condition, can be serious. Enforcement options available to the local planning authority: (i) Breach of condition notice (BCN): a BCN is issued by the LPA under s.187A TCPA 1990 where there is a breach of a planning condition. The BCN identifies the condition that has been breached, what the recipient must do to remedy the breach, and the period within which the breach must be remedied (minimum 28 days). Failure to comply with a BCN without reasonable excuse is a criminal offence under s.187A(8) TCPA 1990 — punishable by a fine (unlimited in the Crown Court). Unlike an enforcement notice, a BCN cannot be appealed — the only challenge is by judicial review; (ii) Enforcement notice (s.172 TCPA 1990): a more formal enforcement route; can be issued for any breach of planning control including breach of condition; can require cessation of the breach and/or restoration of the land; subject to appeal to the Planning Inspectorate (which stays the notice); (iii) Planning contravention notice (s.171C TCPA 1990): a formal request for information about the use of land and the circumstances of a breach — must be answered truthfully within 21 days; failure to respond is a criminal offence; (iv) Stop notice / temporary stop notice (s.183, s.171E TCPA 1990): can require immediate cessation of a breach of planning control; (v) Injunction (s.187B TCPA 1990): the LPA can apply to the High Court for an injunction restraining any breach of planning control. Limitation period: enforcement action for a breach of planning condition must generally be taken within 4 years for building operations and change of use to a dwelling house, or 10 years for any other breach of planning control (s.171B TCPA 1990). Note: a BCN has no limitation period — it can be served at any time regardless of how long the breach has continued.

• Breach of condition notice (BCN): issued under s.187A TCPA 1990; identifies the breach and requires remedy within minimum 28 days; failure to comply = criminal offence (unlimited fine); CANNOT be appealed (only judicial review applies)
• Enforcement notice (s.172 TCPA 1990): formal enforcement for breach of condition; subject to appeal to the Planning Inspectorate (which stays the notice pending appeal); can require cessation and/or restoration
• 4-year rule: enforcement action for building operations and change of use to dwelling house must be taken within 4 years; 10 years for any other breach; BCNs have no limitation period
• Commercial mortgageability: a property subject to an unresolved breach of planning condition may be difficult to mortgage; lenders will often require a planning compliance certificate or indemnity insurance for historic breaches
• Indemnity insurance: for historic planning condition breaches (particularly where the limitation period has expired), indemnity insurance is available and commonly required by lenders; the insurer compensates the insured against any enforcement action by the LPA

Frequently asked questions