Planning conditions and the process of deemed discharge

Under section 74A of the Town and Country Planning Act 1990 as amended and Part 5 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (“DMPO”), conditions requiring the consent, agreement or approval of a local planning authority (“LPA”) can benefit from ‘deemed discharge’ in some circumstances, meaning that such consent, agreement or approval is deemed to have been given by the LPA.

Deemed discharge can be sought where an application for such consent has been made and the 8 week determination period has elapsed with no decision – but only if the applicant gives the LPA advance written notice (“a Deemed Discharge Notice”).

A Deemed Discharge Notice can only be given after six weeks from the day after the application for discharge has been made, or after the expiry of a shorter period if agreed in writing between the applicant and the LPA.  The Deemed Discharge Notice must state which application and condition it refers to and confirm that no appeal has been made in respect of the non-determination (if the determination deadline has passed).

The Deemed Discharge Notice must also specify the date on which deemed discharge is to take effect.  This is the date specified in the Notice itself but it must be the later of the expiry of the 8 week determination period or 14 days after the day following that on which the notice is received by the LPA.  Deemed discharge will be given on that date, unless the LPA makes a determination in the meantime.

However, there are exemptions to this regime as set out in Schedule 6 of the DMPO.  Certain conditions can not benefit from a deemed discharge if the applicant and the LPA have agreed in writing that deemed discharge will not apply or to the following types of conditions:

• Those attached to a development that is subject to an Environmental Impact Assessment
• Those attached to a development that is likely to have a significant effect on a qualifying European site
• Those intended to manage the risk of flood
• Those attached to development within Sites of Scientific Interest which are likely to have a significant effect on such a site
• Those relating to the assessment or remediation of contaminated land
• Those relating to investigation of archaeological potential of the land
• Those relating to highway access or requiring a Section 278 Agreement be entered into
• Those relating to the approval of reserved matters for outline planning permissions
• Those requiring a Section 106 Agreement be entered into
• Those attached to planning permission granted under a Development Order (Special Development Order, Local Development Order, Neighbourhood Development Order) or planning permission granted in relation to Simplified Planning Zone or Enterprise Zone
• Those attached to planning permission granted for Crown development or government authorisation