Tinkering with pre-commencement conditions misses the elephant in the room.

By Gareth Owen

The current public consultation (in England - see link here) on measures designed to tackle a perceived mis-use of ‘pre-commencement’ conditions masks a much deeper issue - a chronic lack of resource in Local Authorities and government agencies.  In their latest proposed tinkering with the planning regime, the UK Government is once again focusing on giving the illusion of control through recording a process.  Instead, they should be providing an environment that supports and empowers officers to make the best decisions in a timely manner.   

We must cut through the red tape. We must remove barriers to development.  The mantra coming from Westminster sounds logical and is an easy vote winner.  Few would argue that the current housing market needs to adapt and evolve to meet societal needs.  Equally few would disagree that development, particularly on brownfield sites, is a good thing for the UK economy.  So what is actually slowing the pace of development?  Red tape, or a more fundamental constraint on the system?

In their attempts to stimulate development in the UK, one of the Government's key policy goals has been to reform the planning system.  A library of Planning Policy Guidance notes was swept aside for the National Planning Policy Framework.  On the face of it, the red-tape had been slashed, with the planning policy tomes reduced to a few pages (if we ignore the many webpages of guidance notes underpinning the NPPF). 

The latest step along this road is the current consultation seeking opinions on the method of implementation of the Neighbourhood Planning Act.  Passed last year, part of this Act is focussed on tackling the “red-tape” represented by the perceived current abuse of “pre-commencement” planning conditions.

Pre-commencement planning conditions have long been used as an effective tool by both planners and developers.  For planners, they represent a means of granting permission for development that they see as suitable, but which has not yet been fully supported by all the facts and figures needed to fully comply with planning policy.  For developers, they represent a means of minimising spend on consultancy fees at the risky, front-end of projects.  This enables them to delay such spend until there is certainty that they will be permitted to develop.

Why then is there an imperative to address the perceived abuse of such an apparently useful planning tool?  Consultation responses provided to the Government ahead of the drafting of the Neighbourhood Planning Act 2017 indicated a consensus that pre-commencement conditions were sometimes frustrating and delaying development projects.  It appears to be the Government’s conclusion that the root-cause of such delays in the planning system is a disconnect between planning officer and developer – that the imposition of pre-commencement conditions is often done at the frustration of developer, rather than in a constructive and cooperative manner. 

Their proposed (and now legislated) solution is to add yet more process (dare I say red-tape) in the form of a requirement for written prior agreement to any such conditions.  In my view, such a solution fails to drive to the root-cause.  Indeed, it smacks of an attempt to influence by imposing process, rather than spending time properly understanding the nub of the issue.

There are always going to be cases in which planning officer and developer clash over discharge of conditions, but my overwhelming experience in two decades in the development industry is that such cases are the exception.  That said, the last few years have seen a trend towards the imposition of more pre-commencement conditions, often despite the required information being submitted to avoid such conditions.  I doubt this is due to a simple change in stance or attitude of planning officers.  It’s far more likely to be a consequence of the increasing strain placed on both planning officers and their statutory consultees by another of the Government’s policies – austerity. 

With shrinking budgets, increasing workloads and diminishing staff resources, planners and their consultees simply can’t devote the necessary time to the review of submissions.  The inevitable result is that the easiest response to a looming response deadline is to issue a decision loaded with extraneous pre-commencement decisions.  Whilst this simply delays the need for an in-depth review for a later date, it is human nature to delay rather than obstruct, and is often the only option available to overworked planning and technical teams.

Compounding this is the corresponding constraint that austerity places on a planning officer or statutory consultees’ ability to engage properly in pre-application consultation.

Will adding another layer of documentation really encourage greater dialogue between planner and developer?  I would argue that this used to happen with more regularity and effectiveness pre-austerity, and there was no such written requirement then.  The answer is not more paper but more money, properly targeted.  And that is a much harder political policy to sell than simply banging the drum of axing red-tape.


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