Deemed discharge and the fee you do not get back

Deemed discharge lets an applicant treat a condition as approved when the council has not determined the application to discharge it in time. You serve a notice, a short period passes, and the condition is discharged by operation of law. What you do not get back is the fee you paid to make the application in the first place, and that asymmetry shapes when the procedure is worth using.

The power sits in section 74A of the Town and Country Planning Act 1990, with the procedure set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015. It applies in England to conditions on planning permissions where the condition requires the authority's approval of some detail before development proceeds.

What deemed discharge does

The mechanism is deliberately narrow. It applies where you have made a valid application for approval of details required by a condition, the authority has not given notice of its decision within the statutory period, and the condition is not one that the Order excludes.

In those circumstances you serve a deemed discharge notice on the authority. The notice states the condition, the application it relates to, and the date on which deemed discharge is to take effect. On that date, if the authority still has not decided, the condition is treated as discharged as if approval had been granted.

The effect is a grant, not a waiver. The details you submitted become the approved details, which means the quality of what you submitted matters. Submit a drawing you would not want to build to and you will be building to it.

Conditions it can and cannot apply to

Schedule 6 to the Order lists the conditions excluded from the procedure, and the list is long enough that checking it is the first step rather than an afterthought. Conditions attached to permissions for development subject to environmental impact assessment are outside it, as are conditions engaging other statutory regimes where a default approval would cut across another decision-maker.

Read Schedule 6 itself for the current list rather than relying on a summary, because the exclusions have been amended since the procedure was introduced. If your condition falls within an exclusion, the only route is to chase the authority, to appeal against non-determination, or to apply to vary the condition.

There is a second limitation worth knowing. Deemed discharge applies to conditions requiring approval of details. It does not help with a condition that simply requires something to be done, and it does not help where the authority has refused the application rather than failed to determine it. A refusal is appealable. Silence is what this procedure is for.

Serving the notice correctly

The sequence is mechanical and the dates do the work.

1. Make a valid application for approval of the details, with the correct fee and all the information the condition requires.
2. Wait for the determination period to run. This is normally eight weeks from receipt of a valid application, or a longer period agreed in writing.
3. Serve the deemed discharge notice in writing on the authority, no earlier than the date the Order allows.
4. Specify in the notice the date on which deemed discharge takes effect, which must be at least the minimum period after the notice is given.
5. Keep proof of service and diarise the effective date.

Two errors recur. The first is serving the notice before the determination period has expired, which makes the notice ineffective and starts the whole sequence again. The second is serving a notice where the underlying application was never valid, often because a document the condition required was missing. An invalid application never starts the clock.

Check the current periods in the Order before you diarise anything. The statutory periods have been amended and a date taken from an old article will not hold up.

Where it is worth using

The honest answer is that most applicants use it as pressure rather than as an outcome. A polite email saying that a deemed discharge notice will be served next week produces a decision far more often than it produces a deemed discharge, because authorities dislike conditions being discharged without their sign-off.

Where it really helps is on a live construction programme, where a condition of modest technical content is holding up a start on site and the officer is not responding. Materials samples, a boundary treatment detail, a construction method statement on a simple site: these are the conditions the procedure was designed for.

Where it rarely helps is on anything a statutory consultee is involved in. Even where the condition is not formally excluded, discharging a drainage or contamination condition by default leaves you building to details the consultee never saw, and that is a risk transfer you are taking on knowingly.

The fee position

The fee for an application to discharge conditions is set by the national fee regulations, has been uplifted and is subject to annual indexation. Check the current schedule rather than a figure quoted in an older article, because the amounts change each April.

Deemed discharge does not trigger a refund of that fee. You paid for a determination, you did not get one, and the money stays with the authority. There is no mechanism in the Order that returns it.

This matters more than it sounds on a site with several conditions discharged in tranches. Each application carries its own fee, and the fee is charged per request rather than per condition, so grouping conditions into a single request is usually worth doing. The exception is where one condition is straightforward and another needs a consultee response, in which case splitting them stops the simple one being held behind the complicated one.

What to do instead when it is excluded

Where Schedule 6 rules the procedure out, three routes remain. Appeal against non-determination, which is slow and rarely proportionate for a single condition. Apply under section 73 to vary the condition into a form that can be complied with, which sometimes removes the problem entirely. Or escalate within the authority, which is unglamorous and works more often than either.

Escalation works best when it is specific. Name the application reference, the date of validation, the date the determination period expired and the consultee response you are waiting for. Ask for a date. Planning managers can usually move a file that has stalled behind a single outstanding consultation.

If the underlying problem is that the condition should never have been imposed in that form, the better answer is to deal with it at the decision stage. Commenting on draft conditions before the decision is issued costs nothing, and a condition drafted so it can be discharged by a drawing rather than by a survey saves months later. The same discipline applies to costing the discharge stage properly while you are still budgeting a householder extension from design to decision or pricing a larger scheme.

Where a condition requires a technical document, having the document drafted early is usually the constraint rather than the fee. Browse all 66 PlanScope report types to see which of the supporting documents a condition is likely to call for.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it, and read the current text of the Order before serving any notice.

See PlanScope pricing if you are working out the document cost alongside the application and discharge fees.

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