Deemed discharge and the cost of a stalled condition

Deemed discharge lets you treat a condition as approved when the council has failed to decide your application to discharge it. The power sits in section 74A of the Town and Country Planning Act 1990, and the procedure and the list of excluded conditions are in Schedule 6 to the Development Management Procedure Order 2015. It is a self help remedy, it works, and most self builders have never heard of it.

It also has a sharp edge. Deemed approval approves what you submitted, including anything you got wrong, and it gives you no officer confirmation to hand a purchaser's solicitor in three years' time. Use it when the condition is simple and the delay is costing real money, not as a general habit.

What deemed discharge does

You apply for approval of details required by a condition. The council has a statutory period to decide, normally eight weeks unless a longer period has been agreed in writing. If that period passes with no decision, you may give the council a deemed discharge notice. On the deemed discharge date stated in that notice, the details are treated as approved.

The timing gates are specific. The notice cannot be given before a set period has run from the later of the date the council received the application and the date the fee was paid, and the deemed discharge date named in the notice has to be a stated minimum number of days after the notice is given. Read the current Schedule 6 for those figures rather than working from a summary, because serving early invalidates the notice and you start again.

What you end up with is a condition discharged by operation of law. There is no decision notice, no approval reference and nothing on the planning register beyond your own notice. Keep the notice, the proof of service and the original submission together in one file, because that bundle is the evidence.

Conditions excluded from the procedure

The exclusions are the reason most attempts fail. Schedule 6 lists categories of condition and of development where deemed discharge simply does not apply, and the list is specific rather than general. It covers, among others, reserved matters on an outline permission, conditions attached to development subject to environmental impact assessment, and conditions dealing with matters such as land contamination, flood risk and habitats.

Read the current Schedule before you serve anything. If the condition falls in an excluded category, your notice has no effect at all, and proceeding on the strength of it means building without the condition discharged. That is a breach of condition, enforceable by notice, and it is a very poor position to be in when you come to sell.

Two other traps. Deemed discharge does not apply where you have agreed a longer determination period in writing, so a polite email agreeing to give the case officer another month can remove the remedy. And it applies to applications for approval of details under a condition, so it does not help with a request to vary a condition, which is a section 73 application with its own route.

Serving the notice correctly

Keep it short and formal.

1. Address it to the local planning authority and send it by a method you can prove, then confirm by email to the case officer.
2. Identify the planning permission by reference and date, and the condition by number.
3. Identify your application for approval of details by its reference and the date it was received, and state the date the fee was paid.
4. State that the notice is given under section 74A of the Town and Country Planning Act 1990.
5. Specify the deemed discharge date, calculated from the current Schedule 6 requirement.
6. Attach nothing new. The notice relates to the submission already made, and adding documents muddies what has been approved.

Diarise the deemed discharge date. If the council issues a decision before that date, whether approval or refusal, that decision takes effect and the notice falls away.

Risks of relying on it

Be honest about these, because they are the reason solicitors dislike deemed discharge.

The approval is of your submission as it stood, with no officer scrutiny. If the drainage detail you sent was drawn to the wrong invert level, you have a deemed approval of the wrong invert level, and the physical problem remains yours. If the submission was incomplete, an authority may later argue that what was submitted did not address the condition, which turns into a dispute about scope rather than about approval.

There is no paper trail in the usual form. Conveyancing enquiries ask for evidence that conditions have been discharged, and a bundle consisting of your own notice takes explaining. Some lenders and some buyers' solicitors will ask for a certificate of lawfulness instead, which costs more than the original discharge application would have.

And it does nothing for relations with the case officer on a scheme where you will need several more discharges. On a self build with eight pre commencement conditions, that matters.

The cost of the alternatives

Standing still is rarely free. Set the risk against the cost of the delay before deciding.

• Waiting: finance interest on the plot, contractor standing time or loss of a booked slot, and on a long delay the risk of the permission lapsing.
• Reapplying: a further fee for the application for approval of details, plus your consultant's time. Fees are set nationally and indexed annually, so take the figure from the current fee schedule rather than an older note.
• A section 73 application to vary or remove the condition: a fee, a fresh determination period, and a new permission with its own conditions.
• An appeal against refusal: free to lodge but slow, and only available once there is a refusal to appeal against.
• Judicial review of a failure to determine: available in principle, disproportionate in practice for a householder or a single plot.

The arithmetic usually favours deemed discharge where the condition is simple, the submission is clearly complete, and the condition is not excluded. It rarely favours it where the detail is technical and the authority's engineer or ecologist needs to be satisfied, because you will need their agreement eventually anyway.

When to use it, and when not to

Use it for the straightforward stuff: materials samples, a boundary treatment detail, a lighting specification, a construction hours statement, a bin and cycle store layout. These are conditions where the submission either answers the condition or does not, and where an officer's comments would have added little.

Avoid it for anything where a consultee response is the real gate: drainage requiring lead local flood authority sign off, ecology requiring a licence position, highway details requiring the highway authority's agreement, or anything touching contamination. In those cases chase the consultee directly, because the case officer is usually waiting on the same response you are.

One practical tactic before serving. Write to the case officer, state the date the statutory period expires, say that you will otherwise serve a deemed discharge notice, and offer a short extension if they can commit to a date. A surprising number of stalled discharges are decided within a fortnight of that letter, which gets you the decision notice and keeps the relationship.

Where the delay was caused by an invalid submission in the first place, the arithmetic is different again, and the note on the real cost of an invalid planning application sets out where the time goes. Keep an eye on the levy timetable too, because a stalled condition that pushes your start date can interact badly with commencement notice requirements.

Draft the supporting statement for a condition discharge on PlanScope, and see pricing for the free report and per report options before you commission anything.

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 current Schedule 6 exclusions and the position with your local planning authority or a qualified professional before serving any notice.