Anyone who has worked with us before (or has read articles from us from a couple of years ago (which coincided with some good case law on this)) will know that we strongly believe the Devil is in the details. They will also know we are always telling everyone to check their planning conditions. This can be at any point… including upon grant of a consent and implementation or checking whether a development has been undertaken in accordance with a condition at the point of purchase or sale.
Sadly, we are still hearing of a few agents telling their clients not to worry about conditions once you have got your consent, however, conditions are there for a reason. We cannot stress how important it is to double check them and not just ignore them. To do so can carry notable consequences.
Conditions are part of the consent and, in some cases, they as good as complete the consent through submission of additional information which is key the heart of the matter which consent is granted for. The quality of submissions can reduce the number of conditions, which is always useful for both applicants and Councils, but some conditions are key at the point of commencement (for example construction management plans or habitat management plans). Whilst breach of a condition can become unenforceable after ten years the issue of lack of compliance can become complex quite quickly (as well as often opening a can of worms in general).
We have, in the last few weeks, reviewed cases where sites have commenced development without discharging/gaining approval of key conditions before certain stages and/or triggers, including pre-commencement conditions. In some cases, conditions can be discharged retrospectively but, if (for example), you have passed the three-year time limit for commencement (on paper) you could have as good as started without permission and then not theoretically have a live consent to fall back on. Such cases can be really key in terms of timings, cause huge delay and risk all works undertaken to date.
So, really, we just wanted to raise (again) the importance of complying with conditions upon consents granted and the even bigger importance of discharging pre-commencement conditions or conditions triggered by a certain point of work (i.e. before installation or prior to works above ground level).
It is also important, though it seems odd to have to remind people, to build/do that for which you have consent. If you need to make adjustments or minor changes – this is often possible and there are routes for non-material amendments etc. If the scheme is so materially different to what consent is granted for, for us, it is not worth the risk without appropriate consent and such issues can often be (and are often) spotted in the event a site is sold. The few weeks of “frustration” going back in is likely going be much less frustrating and costly than an enforcement notice and it is also worth remembering that the changes to enforcement time limits, from this year, means that there is now a flat rate ten-year enforcement window for all planning breaches (compared, for example, to four years previously for building works).
We know that at the moment there are still grumbles about the system being a bit slow (and believe us, we completely relate to many client frustrations), however, everyone is undoubtedly doing their best in a system which is overloaded with a record-breaking volume of applications. Agents and LPAs can work together to reduce conditions and get building quicker, but it really comes down to all parties to take responsibility.
If anyone has any queries on this, please do get in touch via the usual routes on the contact page!