Conditions precedent and why the wording matters
A condition precedent stops development until something is approved. The wording creates it, and the fortnight before determination is when it can still be changed.
A condition precedent is a planning condition that prohibits development from starting until something has been done or approved. The wording is what creates it, not the subject matter, and that is why two conditions about the same thing can have completely different consequences for a build programme.
Compare these. "No development shall take place until a scheme for surface water drainage has been submitted to and approved in writing by the local planning authority." And: "No dwelling shall be occupied until the approved surface water drainage scheme has been implemented." Same drainage, same scheme, same authority. One stops the diggers, the other does not.
What makes a condition a condition precedent
Three features, usually together. A prohibition rather than a requirement. A trigger tied to the start of development rather than to a later stage. And a thing that has to be submitted, approved or carried out before that trigger is passed.
The phrases that do it are familiar: no development shall take place until, prior to the commencement of development, before any works begin on site, notwithstanding the approved plans no works shall be carried out until. Each of them creates the same effect.
What matters is that development has a wide statutory meaning. Demolition is an operation. So is digging a foundation trench and so, in the right circumstances, is laying out a road. A condition that bites on development therefore bites on site clearance and enabling works, which is exactly when a contractor wants to be on site and exactly when nobody is thinking about conditions.
Wording that creates one by accident
Most accidental conditions precedent come from three drafting habits.
The first is using a template. Authorities keep condition libraries, and the library version of a materials condition or a landscaping condition is often written with a commencement trigger because that is how it was drafted 15 years ago. Nobody rereads it.
The second is a condition that mixes triggers. "No development shall take place until details of external materials have been submitted and approved, and the development shall be carried out in accordance with the approved details." The second limb is the useful one. The first limb is unnecessary and stops the job.
The third is a condition requiring a survey or investigation that can only sensibly be done once work has begun. Conditions requiring recording of fabric revealed during opening up, or watching briefs during excavation, sometimes get a commencement trigger by mistake, which creates an impossible sequence.
Read every condition against the six tests in national guidance: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. A condition that fails precision is also a condition you cannot safely discharge.
The statutory restriction on imposing them
Section 100ZA of the Town and Country Planning Act 1990 prevents a local planning authority from granting permission subject to a pre-commencement condition without the applicant's written agreement. Regulations set out how the authority gives notice of a proposed condition, with its text and the reason for it, and the period within which the applicant may respond.
Two things follow that agents forget.
The notice is a real opportunity and it is short. Treat it like a consultation response with a deadline, diarise it on receipt, and check the current regulations for what happens if the period passes without a reply.
Agreement is condition by condition. You can agree to three and object to five, and the authority then has to decide whether to impose the five as later triggers, drop them, or refuse. In practice they get reworded, because an officer would rather move a trigger than lose a recommendation.
Agreeing conditions before the decision is issued
The productive conversation happens in the last fortnight before determination, and it is a conversation about sequence rather than about substance.
Ask for the draft conditions. Most officers will send them. Then go through them with the programme open and sort each one into a category.
| Category | Typical conditions | Ask for |
|---|---|---|
| Must bite before any work | Contamination remediation strategy, protected species mitigation, archaeological written scheme of investigation, tree protection | Accept, and programme the discharge |
| Should bite before a defined stage | Materials, boundary treatments, levels above slab | Reword to before works above damp proof course level, or before the relevant element |
| Should bite before occupation or use | Landscaping implementation, parking layout, electric vehicle charging, refuse storage, travel plan | Reword to before first occupation |
| Should not be a condition at all | Matters already fixed by the approved drawings, or requirements repeating other legislation | Ask for deletion, citing the six tests |
The second row is the one worth fighting for. A condition triggered at damp proof course level lets groundworks, foundations and drainage proceed while the details are agreed, which on a small site is six to eight weeks of programme recovered for the cost of one email.
Some conditions have to stay where they are. Where a scheme needs a habitats regulations assessment, the mitigation conditions arising from it will be pre-commencement and should be, and the reasons are explained in the note on habitats regulations assessment. The same is true of the biodiversity gain condition, which requires an approved biodiversity gain plan before development begins and is deemed into the permission rather than negotiated into it.
Sequencing discharge against the build programme
Discharge applications are determined in the same statutory period as a minor application, and authorities are entitled to use all of it. Plan backwards from the start date.
- List every condition precedent with the evidence each one needs and who produces it.
- Identify the long lead items. A remediation strategy needs a Phase 2 investigation. An archaeological written scheme needs a specialist. A drainage scheme needs infiltration testing, which needs a dry enough window.
- Submit in one batch where the evidence is ready, because the fee is per request rather than per condition.
- Confirm in writing what has been approved, and keep the decision notice for each discharge with the permission.
- Only then start on site.
Where an authority fails to determine a discharge application within the statutory period, a deemed discharge procedure exists under section 74A of the 1990 Act for some conditions. It is not available for every condition, and the excluded categories include several of the ones most likely to be causing the delay. Check the exclusions before relying on it, and serve the notice correctly if you do.
Why building first is not recoverable
If work starts in breach of a true condition precedent, the works may not implement the permission at all, which means the permission can still expire on its original date. That is the position the courts have taken, and the remedies afterwards are all worse than compliance: a fresh application under current policy, a certificate of lawfulness if enforcement time limits have run, or an argument with a purchaser's solicitor at the least convenient moment.
The instinctive response on site is to keep going and apply retrospectively. It rarely helps, because the problem is not the works. The problem is the date.
Asking for rewording, practically
Write one email listing each condition by number, the reason the trigger is wrong, and the exact replacement wording you propose. Officers will accept a clean redraft far more readily than a general complaint about pre-commencement conditions.
Keep the substance intact. An officer resists a request that looks like an attempt to dilute the requirement and accepts one that moves when it applies. Say so explicitly in the email.
An illustrative case: on a six unit scheme the draft has nine conditions, five of them pre-commencement. The agent accepts the contamination and tree protection conditions, proposes damp proof course triggers for materials and levels, and asks for the landscaping condition to move to first occupation. The officer agrees to four of the five changes. The site starts five weeks earlier, and the remaining risk sits on two conditions instead of five.
Work out which supporting documents each condition will actually need before you agree to it, because that evidence, not the wording, is what sets how long the discharge takes.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
What wording turns a condition into a condition precedent?
A prohibition tied to the start of development. Phrases such as no development shall take place until, prior to the commencement of development, or before any works begin all create one. Development carries its wide statutory meaning, so the condition bites on demolition, site clearance and enabling works as well as on construction.
Can I refuse a pre-commencement condition?
Section 100ZA of the Town and Country Planning Act 1990 prevents an authority imposing one without the applicant's written agreement, and regulations set out how notice is given and how long you have to reply. Agreement is condition by condition, so you can accept some and object to others. Check the current regulations for what silence means.
Which conditions should stay pre-commencement?
Contamination remediation strategies, protected species mitigation, archaeological written schemes of investigation and tree protection measures all need to be settled before anything happens on site. Mitigation arising from a habitats regulations assessment belongs there too, and the biodiversity gain condition is deemed into the permission rather than negotiated.
What is a damp proof course trigger?
A condition reworded so it bites before development above damp proof course level rather than before any development. Groundworks, foundations and drainage can then proceed while materials, levels or boundary details are agreed. On a small site that commonly recovers six to eight weeks of programme without changing the substance of the requirement.
What is deemed discharge and when can I use it?
Section 74A of the 1990 Act allows some conditions to be treated as discharged where the authority has not determined the application in time and the correct notice is served. Several categories are excluded, including a number of the conditions most likely to be holding up a start. Check the exclusions before relying on it.
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.