The cost of a pre-commencement condition you cannot discharge

A pre-commencement condition cost is rarely the fee for the discharge application. It is the finance on a site that cannot start, the contractor's preliminaries on a deferred programme, and occasionally the permission itself, because works carried out in breach of a true condition precedent may not count as implementing the permission at all.

The worst version is a condition that cannot be discharged because it depends on somebody else. Land you do not own, a highway agreement you cannot sign alone, a utility diversion in a queue. Those conditions are the ones to negotiate out before the decision is issued, and there is a statutory mechanism for doing exactly that.

Why pre-commencement conditions stop a site dead

A condition precedent requires something to be approved or done before any development begins. Not before the roof goes on. Before any material operation.

Most schemes carry several: contaminated land verification, a construction management plan, drainage details, an archaeological written scheme of investigation, a biodiversity delivery plan, materials, landscaping, ecology mitigation. Each needs its own submission, each attracts a determination period of up to eight weeks, and councils do not run them in parallel as a matter of course unless asked.

Assume eight weeks from a complete submission. Then add the time to produce the information itself, which for anything seasonal is measured in months rather than weeks. An ecology condition submitted in October when the mitigation depends on a spring survey costs a full season, as set out in budgeting the ecology evidence base around the survey season.

Conditions requiring third party land or agreement

A negative condition preventing development until off-site works are completed is commonly called a Grampian condition, after the case that established the approach. It is lawful even where the works are on land the applicant does not control.

The limit is practical rather than technical. The courts have held that such a condition should not be imposed where there is no reasonable prospect of the action being performed within the lifetime of the permission. If the highway works need a third party's land and that party has refused, the condition is not a solution and the application should have been refused or the scheme changed.

Watch for four patterns in particular:

Each of these has to be started before the permission is granted, not after. A section 278 agreement begun on the day of the decision notice puts the site months behind.

The consultation requirement before such conditions are imposed

Section 100ZA of the Town and Country Planning Act 1990 restricts the power to impose pre-commencement conditions. The authority may not grant permission subject to such a condition without the written agreement of the applicant, following the procedure in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018.

In practice the council gives notice of the proposed condition, the text of it and the reason, and allows a period for a substantive response. Silence is not a safe reply. Where the applicant does not respond within the period, the authority may proceed.

This is the single most under-used protection in the development management process. Most applicants receive the notice, read it as a formality and return it agreed. Read it as a negotiation instead.

Three things to ask for in the response:

1. That the condition be re-cast so the trigger is later than commencement wherever the harm allows, for example before the superstructure, before first occupation, or before the use begins.
2. That related conditions be grouped into a single submission so one determination covers several.
3. That the wording refer to a scheme "submitted to and approved in writing" rather than to an outcome that depends on a third party.

Officers will often agree to a later trigger where the reason for the condition does not require pre-commencement control at all. Materials and landscaping almost never do.

Negotiating wording at the decision stage

Ask for draft conditions before the decision is issued, as a matter of routine. Most case officers will share them, and the conversation is far easier before the decision than after.

Look for triggers that do not match the harm, conditions that duplicate another regime, and conditions that require information you already submitted. A condition requiring a drainage strategy when the approved drainage strategy is on the application file is a drafting error, and it is corrected in a phone call before issue and by an application afterwards.

Also check which conditions are capable of the deemed discharge procedure, which allows a developer to give notice and treat certain conditions as discharged where the authority has not determined the application in time. It does not apply to everything, and the exclusions matter, but it is a useful lever on a slow authority.

What happens if work starts before discharge

This is where the real money is lost. Starting work in breach of a condition precedent is a breach of planning control, and it exposes the development to enforcement.

The more serious consequence is the effect on the permission itself. The courts have held that operations carried out in breach of a condition precedent may not amount to a lawful implementation of the permission. A permission approaching the end of its three-year period, implemented only by works carried out in breach, can therefore expire, leaving the site with no permission at all and a scheme that may no longer accord with a changed development plan.

Digging a trench to keep a permission alive, without discharging the conditions, is the specific mistake that produces this outcome. Take advice before doing it.

Varying a condition that cannot be met

Where a condition is undischargeable, an application under section 73 to vary or remove it is the route. It is decided as a fresh application on the merits of the condition, and it results in a new permission with its own time limit, which is sometimes useful in itself.

Section 73 has limits. It cannot be used to change the description of development, and it cannot be used to extend the time limit for implementation. Where the problem is the scheme rather than the condition, a new application is the honest answer.

A non-material amendment cannot rewrite a condition in any way that matters, so do not expect that route to help with a substantive problem.

Where the council's refusal to discharge or vary is unreasonable, there is an appeal against non-determination or refusal, and an application for costs can follow. The approach to that is covered in how appeal costs awards are assessed and paid.

Programme and finance consequences

Model the conditions into the programme as a named critical path item with a responsible person against each. Then price the delay scenario rather than the expected case.

Three costs to put in the model: extended finance on the land at the drawn rate, contractor preliminaries or a remobilisation charge where the start slips past a fixed date, and the levy position, which is fixed at the date the permission first permits the development and does not wait for your conditions. The calculation method is set out in working out CIL liability from a charging schedule.

Discharge application fees are set by the national fee regulations and are indexed annually, so check the current schedule rather than a figure from an old appraisal. If you are pricing the supporting documents themselves, PlanScope pricing sets out the free report, the per-report price and the Professional tier, and the report index shows which documents each condition is likely to call for.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.