Commentary on Sections Deemed discharge of planning conditions Section 29: Deemed discharge of planning conditions
142.Section 29 inserts a new section 74A into the Town and Country Planning Act 1990 (the 1990 Act). Section 74A will allow the Secretary of State to provide by order for the deemed discharge of certain conditions attached to planning permission. The conditions in question are those which require the consent, agreement or approval of the local planning authority and which are imposed on planning permission for development in England.
143.Subsection (1) introduces the power of the Secretary of State to make provision by development order for the deemed discharge of a condition covered by section 74A. A “development order” is an order, subject to the negative resolution procedure, which can set out the procedure for applying for planning permission (see section 59 of the 1990 Act).
144.Subsection (2) limits the provision to conditions placed on planning permission in relation to development in England only. It further limits the provision to the types of conditions which require the consent, agreement or approval of a local planning authority. For example a condition might require the applicant to submit a scheme for the management of construction works on site for the approval of the local authority before development can take place.
145.Subsection (3) sets out that where a condition is deemed to be discharged this means that the approval, consent or agreement of the local planning authority to any matter required by the condition is deemed to have been given. So a deemed discharge would have the effect of ‘discharging’ the applicant from the requirement of gaining the consent, approval or agreement from the local planning authority. This means the authority cannot take enforcement action against the development on the basis that there has been a failure to obtain such consent, approval or agreement. So in the example above, the local planning authority would not be able to take enforcement action and stop development on site on the basis that the scheme did not have its actual written approval.
146.Subsection (4) sets out what a development order must specify in relation to the process for deemed discharge. It must provide that the deemed discharge can only apply where an applicant has applied for the approval, agreement or consent of the local planning authority as required under the condition in question, and that the determination period has lapsed without a decision from the local planning authority having been made and notified to the applicant. Further the applicant must have taken any procedural steps laid down by the Secretary of State in the development order before a condition can be deemed to be discharged.
147.Subsection (5) provides that the Secretary of State can provide for the procedure to be followed in the development order. For example, the order might provide under the powers in paragraphs (a), (b) and (e) of subsection (5) that the applicant must serve a notice in a prescribed form on the Secretary of State, stating his intention to rely on the deemed discharge provisions, after a certain number of weeks have elapsed from the date of the original application for the authority’s approval to a condition. Under subsection (5)(d), the Secretary of State may provide for the prescribed time periods within the deemed discharge procedure to be varied by agreement. This power could be exercised, for example, to allow the applicant and the local planning authority to extend such periods by agreement, which might be useful in a complex development.
148.Subsection (6) sets out that the Secretary of State may provide in a development order that the deemed discharge provisions will not apply in particular circumstances. For instance, the order may prescribe that certain types of conditions are exempted from the section.
149.Subsection (6)(b) gives the Secretary of State the power to exempt certain types of conditions by reference to the type of planning permission to which they relate. This is needed because planning permission may be granted in different ways for example following a planning application submitted to the local planning authority, by the Secretary of State on cases following an appeal or call-in or by development order, and it may not be appropriate for conditions attached to planning permission granted by particular routes to be subject to the deemed discharge provisions.
150.Subsection (6)(c) gives the Secretary of State the power to exempt certain types of conditions by reference to description of the development, for example based on thresholds, character or any other category.
151.Subsection (6)(d) gives the Secretary of State the power to provide that the deemed discharge provisions will not apply in any other circumstances. For example, the power could be used to provide that the deemed discharge provisions will not be available where the underlying application for planning permission is subject to appeal. In addition the applicant and the local planning authority may agree the deemed discharge provisions should not apply to a condition (subsection (7)).
152.Subsection (8) gives the Secretary of State the power, by development order, to disapply section 78(2) of the 1990 Act or to apply it with modifications in relation to the deemed discharge provisions. The Secretary of State will be able to provide in the development order that where an applicant intends to rely on the deemed discharge provisions, he or she will not also be able to appeal the authority’s non-determination of his or her application for approval under section 78(2).
153.Subsection (9) explains that the deemed discharge provisions may only apply to conditions attached to planning permissions where the application for the planning permission was submitted after the order comes into force. This is to ensure that the provision will not apply retrospectively.