Checking that pre-commencement conditions were discharged
Work started without the required approval may mean the permission was never lawfully implemented. Finding out is a register search and a careful read of two documents.
If a permission carries a condition requiring something to be approved before development begins, and work has started without that approval, the developer may not have lawfully implemented the permission at all. A pre-commencement condition discharge check is therefore worth doing before complaining about anything else, because the answer can be more consequential than the breach that prompted you to look.
It is a register search and a careful read of two documents. Nothing more technical than that.
What a pre-commencement condition requires
A pre-commencement condition is one that must be satisfied before development starts, usually by submitting details for the council's approval. Typical examples: samples of external materials, a construction management plan, a surface water drainage scheme, a contamination remediation strategy, a tree protection plan, an archaeological written scheme of investigation, a biodiversity gain plan.
Since 2018 a council cannot impose a pre-commencement condition without the applicant's written agreement, following a statutory notification procedure. One effect is that there are fewer of them than there used to be, and the ones that survive are usually there because the applicant accepted they were necessary.
Read the wording precisely. There is a real difference between no development shall take place until details have been approved, which bites before anything starts, and no development above damp proof course level shall take place until, which allows the foundations to proceed. Councils also use conditions phrased around a particular phase or plot, and those have narrower effect.
The condition number matters too, because discharge decisions are recorded against numbers rather than descriptions.
Finding discharge applications on the register
Search the council's planning register by address rather than by the original application reference, and list every record at that address.
Discharge applications are a separate application type, described variously as approval of details reserved by condition, discharge of conditions, or removal or variation of a condition. They usually appear with a suffix on the original reference or with their own reference and a date some months later.
They are generally not publicised. No site notice, no neighbour letter, so there is no reason you would know one had been made. That is why checking the register periodically after a permission is granted is more useful than waiting for post, as set out in reading a decision notice as a neighbour.
If nothing appears, two possibilities. No application has been made. Or one has been made and the record is not yet published, which happens. Ask the council to confirm in writing which conditions have been discharged and on what date, which is a question they can answer from the case file in a few minutes.
Reading the discharge decision
A discharge decision does three things, and all three need checking.
It lists the conditions it relates to, by number. A decision covering conditions 3, 4 and 7 says nothing about condition 5, and developers sometimes proceed as though a partial discharge cleared the lot.
It lists the documents approved, by title and date or revision. Those documents become the approved details, so a construction management plan approved in January is the one that governs, not a later version the contractor is working to.
And it may discharge in part, or discharge subject to further submission. Phrases like approved in respect of plots 1 to 10 only, or approved subject to the submission of the monitoring schedule, mean the condition is not fully discharged.
Download the approved documents. They are the practical answer to most neighbour questions about hours, routing, wheel washing and tree protection, and they are enforceable.
Consequences of starting without approval
This is where the law is more interesting than people expect, and also less certain.
The leading authorities draw a distinction. Where a condition is a true condition precedent, going to the heart of the permission, operations carried out in breach of it are not carried out under the permission, so the permission has not been implemented. That was the position established in Whitley in 1992. Later cases, including Hart Aggregates in 2005, distinguished conditions of that kind from conditions requiring the approval of a particular aspect of the development, breach of which does not invalidate the whole implementation.
Which category a given condition falls into depends on its wording and on what it was there to control, and it is a question on which reasonable lawyers differ. Describe it to the council as a question rather than as a conclusion.
Two practical consequences follow if the permission was not lawfully implemented. The time limit for implementation, normally three years, keeps running, so a permission can expire while a developer believes it has been started. And the works carried out are development without permission, subject to the council's enforcement discretion and the relevant immunity period. Separately, a developer who fails to submit a commencement notice where the Community Infrastructure Levy applies loses any relief that had been claimed, which is a different mechanism with the same unforgiving character.
Partial discharge and phased conditions
Large schemes generate layered approvals, and the register can look chaotic.
What to look for:
- Conditions discharged for one phase or plot range only, with later applications covering the rest.
- Grampian conditions, which require works on land the developer does not control, often a highway improvement. These are discharged by evidence that the works have been carried out or secured, not by submission of details.
- Conditions discharged by email or by a letter rather than a formal decision, which some councils still do for minor matters and which may not appear as a register record at all.
- Conditions superseded by a later section 73 permission, which replaces the condition set, so the numbers change and a condition 6 on the original may be a condition 8 on the varied permission.
That last one causes most of the confusion. Always check whether a section 73 or section 96A application has been made, because the operative permission may not be the one you have been reading.
Raising it with the authority
Write to the planning enforcement team with five specific things, and keep it to a page.
The address and the application reference. The condition number and its wording, quoted. The result of your register search, stating that no discharge application appears for that condition as at a given date. Dated photographs showing the work that has been carried out. And a specific question: has the permission been lawfully implemented, and have the pre-commencement conditions been discharged.
Asking a specific question gets a better answer than reporting a breach in general terms. It also creates a record of what the council said, which matters if the position is revisited later.
Expect the council to have discretion about what to do. Enforcement is not automatic, and where details could have been approved had they been submitted, a council will often invite a retrospective discharge application rather than take formal action. Breach of condition specifically has a quicker route than a full enforcement notice, described in breach of condition notices and what they achieve.
Where it affects a lawful start
A permission is implemented by carrying out a material operation. The legislation lists what counts: work of construction in the course of erecting a building, digging trenches for foundations, laying underground mains or pipes to those trenches, laying out a road or part of one, and a material change in the use of the land.
Site clearance, fencing, erecting a site hut and bringing plant onto site are not material operations, so a developer who has done only those has not started, regardless of how busy the site looks. Conversely, trenches dug for foundations are a classic material operation, and if a true condition precedent was unsatisfied at that point the implementation question arises.
Where a section 106 agreement is also in play, its triggers may be tied to implementation or to occupation rather than to the conditions, and checking what it actually requires is a separate exercise covered in how to check what a section 106 agreement delivered.
Keeping track of the council's response afterwards has its own method, set out in how to get an update on a planning enforcement case.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it, and take legal advice before asserting that a permission has not been lawfully implemented.
Frequently asked questions
How do you find out whether a condition has been discharged?
Search the council's planning register by address rather than by application reference and list every record there. Discharge applications appear as a separate type, often described as approval of details reserved by condition, usually with a suffix on the original reference. If nothing appears, ask the council to confirm in writing.
Are neighbours told when conditions are discharged?
Generally no. Discharge applications normally carry no site notice and no neighbour letter, so there is no reason you would hear about one. Checking the register periodically after a permission is granted is the only reliable way to see them, and the approved documents are worth downloading when they appear.
What happens if work starts before a condition is discharged?
It depends on the condition. Where it is a true condition precedent going to the heart of the permission, operations in breach are not carried out under the permission, so the permission may not have been implemented and can expire. Conditions requiring approval of a particular aspect are treated differently by the courts.
Does site clearance count as starting development?
No. Material operations include construction work in erecting a building, digging foundation trenches, laying underground mains to those trenches, laying out a road, and a material change of use. Site clearance, fencing, erecting a site hut and bringing plant onto site are not material operations, however active the site appears.
Why have the condition numbers changed on a permission?
Because a later section 73 permission replaces the condition set, so numbering shifts and the operative permission may not be the one you have been reading. Section 96A non-material amendments can also change approved drawings. Always check whether a later application exists before quoting a condition number.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.