Deemed discharge of conditions and its excluded categories
Deemed discharge treats a condition as discharged when the council fails to determine the application. Schedule 6 to the DMPO 2015 lists where the power does not apply.
Deemed discharge lets an applicant treat a condition as discharged when the council has failed to determine the application to discharge it. The power sits in section 74A of the Town and Country Planning Act 1990, inserted by the Infrastructure Act 2015 and operative in England since April 2015, with the procedure in article 30 of and Schedule 6 to the Town and Country Planning (Development Management Procedure) (England) Order 2015. Schedule 6 is the part that matters, because it lists the conditions to which deemed discharge does not apply.
Used well, it is a lever. Used carelessly, it produces an approval of exactly the details you submitted, including the weak ones.
What the mechanism does
You apply to discharge a condition in the ordinary way. If the authority does not determine that application within the period it has, you may serve a deemed discharge notice. If the authority still does not determine the application by the date the notice identifies, the condition is treated as discharged on the terms of what you submitted.
Three limits on the power are worth stating at the outset. It applies in England. It applies only where the condition requires the authority's approval of some matter, rather than simply prohibiting something. And it applies only where any fee due has been paid and the application was validly made.
The notice and the clock
The arithmetic is set out in article 30 and repays reading in the original before you rely on it, because the periods interact.
In outline, the notice cannot be given until the authority has had its statutory period to determine the discharge application, and the notice itself must specify a date that is a defined minimum period after the notice is given. Written agreement between applicant and authority on an extended determination period displaces the default and pushes the whole sequence back.
The practical consequence is that deemed discharge is not fast. Where a condition is holding up a start on site, the realistic options are an escalation to the case officer's manager, an appeal against non-determination, or a redesign that removes the need for approval. Deemed discharge is the tool you reach for when a council has stopped responding altogether.
As at the date of writing, the section 74A regime remains in force in the form described. Reform of the conditions regime under the Levelling-up and Regeneration Act 2023 has been proceeding in stages, so check whether the procedural provisions have changed before relying on the timings.
The excluded categories
Schedule 6 to the DMPO 2015 sets out the conditions to which deemed discharge does not apply. Read it directly, because the list is specific and it is where most attempts to use the power come apart.
Two exclusions are structural and easy to state. Conditions on a planning permission granted for development that was environmental impact assessment development are outside the regime. So are conditions relating to development requiring an appropriate assessment under the Conservation of Habitats and Species Regulations 2017. In both cases the reason is the same: another regime imposes obligations on the authority that a deemed approval would cut across.
Beyond those, the schedule excludes conditions concerned with matters where a deemed approval would be inappropriate or where a separate consenting process is engaged. Rather than paraphrase a list that has been amended, check the current text of Schedule 6 against the specific condition wording on your decision notice.
A practical filter helps. If the condition exists because a statutory consultee objected, or because another regulator has a say, assume it is excluded until you have checked. Conditions dealing with flood risk are a good example of the type to check carefully, since a Flood Risk Assessment condition often exists to satisfy the Environment Agency rather than the council alone.
Deemed discharge also has nothing to do with prior approval applications under the General Permitted Development Order. Those have their own default provisions, under which failure to determine within the prescribed period can mean the development may proceed. Different regime, different arithmetic.
One further point on scope. The condition has to be one that requires something to be approved, agreed or confirmed by the authority. A condition that simply restricts hours of use, or that requires works to be carried out in accordance with an already approved drawing, has nothing to discharge and nothing to deem.
What you actually get
This is the part that gets underweighted. Deemed discharge approves the details you submitted. It does not approve better details, and it does not cure a submission that was incomplete or wrong.
If your drainage details were a sketch and a paragraph, the deemed discharge approves a sketch and a paragraph. A purchaser's solicitor, a warranty provider or a funder reviewing the title later will see a condition discharged without any consideration by the authority, and will ask questions. On a scheme heading for sale, that can be worse than a six-week delay.
So submit as though the authority were going to scrutinise it. Then, if it does not, you have an approval you can defend.
Keep the submission and the notice together in the file. When a purchaser's solicitor raises the point two years later, the answer is a bundle showing a complete submission, a valid notice and an authority that never replied.
When it is worth using
Three situations where it earns its place:
- A long-stalled discharge application on a scheme where the start date drives finance costs, and where the condition is technically uncontroversial.
- A council that has repeatedly requested further information without ever determining, where the file shows the submission was adequate months ago.
- A pre-start condition on a phased scheme where later phases are blocked by an unresolved earlier one.
And a situation where it is not worth using: where the condition protects something a consultee cares about. Winning a deemed discharge on a matter the Environment Agency or Natural England was engaged with produces a permission everyone regards as unsafe, and it poisons the relationship for the rest of the scheme.
Alternatives when deemed discharge is excluded
Where Schedule 6 rules it out, the routes back are ordinary ones. An appeal to the Planning Inspectorate against non-determination of the discharge application. A section 73 application to vary the condition into something you can satisfy. A section 96A non-material amendment where the change is minor in substance. Or a fresh application for the same development with better-drafted conditions negotiated before the decision is issued.
The last of those is the one experienced agents use most. Negotiating condition wording during determination, in writing, with the officer, costs a phone call and avoids the entire problem. Ask for pre-start conditions to be recast as pre-occupation conditions wherever the subject matter allows it, and ask for anything that could be resolved by a plan reference to be resolved by a plan reference instead of a future approval.
Following procedural reform of this kind is easier through the planning law updates timeline than through the statutory instruments themselves, and the full list of supporting documents a council may ask for sits in the report index.
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
Where does the power to serve a deemed discharge notice come from?
Section 74A of the Town and Country Planning Act 1990, inserted by the Infrastructure Act 2015 and operative in England from April 2015. The procedure, including the timing of the notice and the excluded categories, sits in article 30 of and Schedule 6 to the Town and Country Planning (Development Management Procedure) (England) Order 2015.
Which conditions are excluded from deemed discharge?
Schedule 6 to the DMPO 2015 sets out the list. Conditions on permissions for environmental impact assessment development are excluded, as are conditions relating to development requiring an appropriate assessment under the Conservation of Habitats and Species Regulations 2017. Check the current text of the schedule against your specific condition rather than working from a summary.
Does deemed discharge apply to prior approval applications?
No. Prior approval under the General Permitted Development Order has its own default arrangements, under which failure to determine within the prescribed period can allow the development to proceed. That is a separate mechanism with different timing, and the section 74A regime does not sit on top of it.
Is deemed discharge quicker than an appeal?
Not dramatically. The notice cannot be served until the authority has had its statutory period, and the notice itself must give a further defined period. Where an agreed extension of time is in place, everything moves back. For an application that has stalled completely it is useful. For a merely slow one, escalation within the council is usually faster.
What are the risks of relying on it?
A deemed discharge approves the details as submitted, with no scrutiny. If those details were thin, the discharge is thin, and a funder, warranty provider or purchaser's solicitor reviewing the title will see a condition cleared without any consideration by the authority. Submit as though the council were going to examine the material closely.
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.