Planning Conditions in London: Types, How to Discharge Them, and What Happens If You Don't

Key Takeaways

• ✓Planning conditions in England are governed by Section 72 of the Town and Country Planning Act 1990 (TCPA 1990) and must satisfy the planning policy tests set out in NPPF paragraph 56 — they must be: necessary (without the condition, the development would be unacceptable in planning terms); relevant to planning; relevant to the development to be permitted; enforceable; precise; and reasonable in all other respects. In practice, many planning conditions attached to residential applications in London are standard "model conditions" that the LPA applies routinely to categories of development — but the homeowner must still comply with each condition as written. Planning conditions are classified into three main types by when they must be satisfied: Pre-commencement conditions (conditions that must be satisfied before the development begins — i.e., before any physical building works start on site). Pre-commencement conditions typically require the submission of specified information to the LPA for approval before construction can begin — examples include: approval of external materials (a condition requiring the LPA to approve specific brick, render, or roofing material samples before construction starts, to ensure the extension will use materials that match the existing building or are appropriate to the conservation area); submission of a drainage scheme for approval (a condition requiring the applicant to submit detailed surface water drainage proposals for approval before construction begins, to address the LPA's concerns about surface water run-off from the new development); submission of a tree protection plan for approval (a condition requiring a tree survey and protection plan showing how protected trees will be protected during construction, to be approved before any ground works begin); submission of a construction management plan (a condition requiring the applicant to submit details of how the construction process will be managed, including working hours, delivery routes, and dust suppression measures, to be approved before construction begins). Since the Neighbourhood Planning Act 2017 (which came into force in April 2018), pre-commencement conditions in England can only be imposed with the written agreement of the applicant — the LPA must notify the applicant of any proposed pre-commencement conditions and give the applicant the opportunity to accept, object, or negotiate the condition before it is imposed. In practice, this has not significantly reduced the use of pre-commencement conditions in London — applicants typically accept the conditions in order to get their planning permission — but it does mean that any condition of this type was accepted by the applicant (or their agent) when the permission was granted
• ✓Pre-occupation conditions (conditions that must be satisfied before the development is brought into use or occupied, but that can be satisfied at any time during construction) are less immediately urgent than pre-commencement conditions but must be complied with before the new room or dwelling is occupied. Examples of pre-occupation conditions include: installation of refuse storage facilities to a specified standard before occupation; provision of cycle storage before occupation; completion of highway improvements before occupation; submission and approval of a landscaping scheme, with planting to be completed in the first available planting season after occupation. Ongoing conditions (conditions that must be complied with on a continuing basis throughout the life of the development, rather than at a specific point in the construction programme) impose permanent restrictions or obligations on the use of the land. Examples include: use restrictions (a condition limiting the permitted use of a building or room — for example, a condition restricting a new ground-floor extension to use as a single residential dwelling only, preventing conversion to flats or HMO use); noise controls (a condition requiring that certain pieces of plant or equipment are operated only between specified hours); lighting controls (a condition requiring that external lighting is designed to prevent light spill beyond a specified lux level at the boundary); landscaping maintenance conditions (a condition requiring that landscaping planted in accordance with an approved plan is maintained for a specified period and replaced if it dies). Ongoing conditions cannot be discharged in the same way as pre-commencement or pre-occupation conditions — they continue to apply indefinitely and must be complied with at all times. A failure to comply with an ongoing condition is a breach of planning control that can be enforced at any time (there is no 4-year immunity period for breach of condition in the way there is for operational development without planning permission)
• ✓The formal process for discharging a pre-commencement or pre-occupation condition is the "application to discharge conditions" (also called an application for approval of details required by condition). The process involves: submitting an application on the planning portal (or directly to the borough) specifying the planning permission reference number, the condition(s) being discharged, and the supporting information required by the condition; paying the application fee (currently £43 per application, for a householder application to discharge conditions); providing the specific information required by the condition (materials samples — typically described as a physical sample board or sample panels erected on site; drainage scheme drawings; tree protection plan drawings; drainage calculations; ecological surveys; or other information specified in the condition); waiting for the LPA's determination. The LPA has a target of 8 weeks to determine an application to discharge conditions. The LPA may: approve the condition discharge (issuing a formal written approval that confirms the condition has been satisfied — this is the written approval you need to evidence compliance for the purpose of selling or remortgaging the property); refuse the condition discharge (where the information submitted does not adequately address the condition requirements — typically requesting additional or revised information); or fail to determine within 8 weeks (in which case the applicant can appeal to the Planning Inspectorate against non-determination). The formal written approval of a condition discharge should be retained with the planning permission documents and passed to future purchasers on the sale of the property. For pre-commencement conditions, the approval must be obtained and kept on file before any construction begins on site — starting construction before a pre-commencement condition is discharged means the development is being carried out in breach of condition, which is a breach of planning control
• ✓Non-compliance with planning conditions is a breach of planning control. The LPA has powers under the TCPA 1990 to take enforcement action against breaches of planning conditions, including: Breach of Condition Notice (BCN) — a formal notice requiring the person responsible for the development to take specified steps to comply with the condition within a specified period (minimum 28 days). Failure to comply with a BCN is a criminal offence (unlike failure to comply with an enforcement notice — see below — which is primarily a civil matter leading to direct action). Planning Enforcement Notice (EN) — a notice requiring steps to be taken to remedy the breach of condition, with a compliance period of at least 28 days. The recipient of an enforcement notice can appeal to the Planning Inspectorate within the compliance period, which suspends the notice pending the appeal. Injunction — in serious cases, the LPA can seek a High Court injunction to restrain an actual or apprehended breach of planning control. An injunction can require works to stop immediately. The limitation periods for enforcement action against breach of planning condition are important: there is no specific limitation period for ongoing conditions (the LPA can take enforcement action at any time); for pre-commencement and pre-occupation conditions, enforcement action is possible at any time within 10 years of the date of the breach. This means that a homeowner who started construction without discharging a pre-commencement condition is at risk of enforcement action for up to 10 years from the date construction began — significantly longer than the 4-year immunity period for building without planning permission. For the purpose of selling the property, planning conditions that have not been discharged and that are more than 10 years old may be immune from enforcement action and may therefore be treated as complied with for practical purposes — but this should be confirmed with a planning consultant or solicitor before relying on it in a transaction
• ✓Obtaining approval for materials under a condition requiring prior approval of external materials is one of the most common condition-discharge applications in London conservation areas and for listed buildings. The condition is typically worded: "Prior to the commencement of works, samples of materials to be used in the external surfaces of the development (facing brickwork, roofing materials, render, windows, and rainwater goods) shall be submitted to and approved in writing by the Local Planning Authority." The application to discharge this condition must include: a physical sample board or sample panel erected on site (for brick samples — a sample area of at least 1m x 1m of the proposed facing brickwork, laid in the correct bond pattern with the correct mortar colour and joint profile, erected on the site for the planning officer to inspect in situ); manufacturer's product literature and specifications for all proposed materials; proposed colour and finish specifications for painted surfaces, rainwater goods, and window frames; the application to discharge the condition on the Planning Portal. The LPA's planning officer will inspect the sample on site and assess whether the proposed materials are appropriate to the conservation area character or to the listed building setting. This process can take 4–8 weeks, and the officer may request modifications to the proposed materials before approving the discharge — for example, requiring a different brick bond, a different mortar joint colour (lime putty mortar rather than cement mortar in a conservation area), or a different window profile or colour. Beginning the external construction work before the materials condition is discharged means the development is in breach of condition — and if the LPA inspects and finds that non-approved materials are being used, it can require that the non-approved materials are removed and replaced with the approved materials