Government confirms detail of proposed "deemed discharge" measure

The Infrastructure Bill, which is currently at the report stage in the House of Lords, proposes to introduce a mechanism allowing developers to commence development without fear of enforcement action, where the relevant council has failed to make a decision on the discharge of planning conditions within good time.  

As part of its 'technical consultation on planning' earlier this year, the Government sought views from councils and developers on its proposals for the detail of the proposed measure. In a response to the consultation (8-page / 245 KB PDF) published this week, the Government has confirmed the procedures and exemptions that it intends to carry forward in future secondary legislation.

The Government confirmed that deemed discharge would only be activated by the service of notice by an applicant on the relevant local planning authority (LPA), rather than applying automatically. It  proposed that, six weeks after applying to the LPA for confirmation of its decision, an applicant would be able to give the LPA a minimum of two weeks notice of intention to activate a deemed discharge.

The Government listed a number of "sensitive types of condition", which would be exempt from the proposed deemed discharge measure. It confirmed in its response that all conditions designed to manage flood risk, attached to developments subject to an environmental impact assessment, or attached to developments "likely to have a significant effect on a qualifying European site" would be exempted from the measure.

Conditions requiring reserved matters approval, or requiring that planning or highways agreements be entered into would also be exempt, the response said. In line with responses made to the consultation, the Government also said that conditions requiring the investigation and remediation of contaminated land or relating to highway safety, Sites of Special Scientific Interest or investigation of archaeological potential would be added to the list of exemptions.

The response acknowledged that certain LPAs had raised concerns that delays could be caused by councils waiting for third party advice in relation to planning conditions. The Government said it intended "to publish planning guidance on its expectations of third parties in cases where their advice is sought". The Government also noted that it would be open for LPAs to agree a longer timescale for the discharge of conditions on an individual basis, where outside advice was required.

"The Government considers that the deemed discharge measures represent an effective and proportionate response to the issue of delays in discharging planning conditions that will make a significant contribution to unblocking much needed development, including new homes, that the country badly needs," said the response. "The deemed discharge would be subject to important safeguards and a procedure that is supported by respondents to the consultation."