Deemed discharge of conditions and when you can use it
Section 74A lets you treat a condition as discharged by serving a notice, but Schedule 6 removes most of the conditions holding up a start on site.
A deemed discharge of conditions lets you treat a condition on your planning permission as approved when the local planning authority has failed to decide your application for approval in time. The power sits in section 74A of the Town and Country Planning Act 1990, inserted by the Infrastructure Act 2015, and it works by notice rather than by appeal. You give the authority a deemed discharge notice, a short period runs, and on the date your notice specifies the condition is treated as discharged. No decision notice arrives. No fee comes back either.
It is also much narrower than most developers expect, because a long list of condition types is carved out of it.
How the mechanism works
Section 74A applies where a condition on a planning permission requires the authority's approval, consent or agreement before something happens, and you have applied for that approval. Materials schedules, hard and soft landscaping details, construction method statements and external lighting layouts are the everyday examples.
What you get is a discharge in the terms you applied for. The detail you submitted becomes the approved detail, without the amendments an officer might have negotiated. That cuts both ways, and it is the single most important thing to understand before serving anything.
The mechanism does not extend the life of the permission, does not validate an application the authority has rejected on fee or form grounds, and does nothing about conditions that do not require approval at all. A condition that simply restricts opening hours has nothing to discharge.
The notice and the dates that matter
Three dates control everything. Get them in a spreadsheet before you draft the notice.
| Step | Earliest date |
|---|---|
| Application for approval received by the authority | Day 0 |
| Deemed discharge notice may be given | Six weeks after day 0, or later if a longer period has been agreed in writing |
| Date the notice specifies for discharge to take effect | At least 14 days after the day the notice is given |
The notice itself is a short document. Identify the planning permission by reference number and date, identify the condition by number and quote it, identify the application for approval and the date the authority received it, then state the date on which the deemed discharge is to take effect. Serve it on the authority in writing and keep proof of delivery, because the date of service is the fact you will have to prove later.
The authority can still decide inside that 14-day window. A refusal issued before your specified date stops the deemed discharge in its tracks and leaves you with a refusal to appeal. An approval does the same, which is usually the better outcome anyway.
Check the current wording of the Development Management Procedure Order 2015 before you rely on any of this. The procedural detail has been amended since 2015 and the version in a 2016 practice note may no longer be right.
Conditions the regulations exclude
Schedule 6 to the Development Management Procedure Order 2015 sets out the descriptions of condition that section 74A cannot reach. Read the Schedule as it currently stands rather than a summary of it, including this one.
The excluded descriptions cover the ground where getting approval wrong carries the heaviest consequences. Conditions on permissions for development that was subject to environmental impact assessment sit outside the mechanism. So do conditions engaging the habitats regime and protected sites, conditions dealing with land contamination, conditions concerned with flood risk and drainage, reserved matters on an outline permission, and conditions imposed to deliver what a planning obligation requires.
On a major residential scheme that removes a large share of the conditions that must be cleared before work starts you most want cleared quickly. Drainage and contamination are often the two holding up a start on site, and both tend to fall outside. Work out which of your conditions are actually in scope at the point the permission is granted, not three months later when the programme is already slipping.
Where the authority has asked for more information
An officer emailing to ask for revised infiltration testing or a fuller materials schedule does not stop the six weeks running. It does change the picture in two ways that matter.
First, if you send the extra material and the authority treats it as a fresh or amended application, the clock may restart on a new receipt date. Ask the officer, in writing, whether the original application stands.
Second, officers frequently propose a written agreement to extend the period. Agreeing pushes your earliest notice date out, sometimes by months, and there is no obligation to agree. Weigh that against the relationship you need with the same team for the next twelve conditions.
If the application was never valid, the six weeks never started. A missing fee is the usual culprit. Get the authority's receipt in writing at the outset and the argument disappears.
The risks of relying on it
You end up with the detail you submitted, errors included. A drainage layout that does not work is still a drainage layout you are now bound to build, and discharge of a planning condition says nothing about Building Regulations, a sewer connection agreement or a land drainage consent.
The second risk is slower to surface. Deemed discharge removes the requirement for approval. It does not settle whether the works on site accord with the detail the condition described, so a dispute about compliance can still arrive as a breach of condition notice two years later. Keep the submitted drawings, the notice and the proof of service in the project file for the life of the development.
Honest caveat: reported case law on section 74A is thin, so the edges of the mechanism have had little testing. Where a notice is defective and you have started work in reliance on it, the position is uncomfortable and advice is worth paying for.
What lenders and buyers make of it
A solicitor reviewing title on a plot sale expects to see a decision notice discharging each condition that must be cleared before work starts. A deemed discharge produces no such document, only your own notice and the absence of a council response, and that reliably generates requisitions.
Assemble the evidence pack while the facts are fresh: the application for approval, the authority's written acknowledgement of receipt, the notice, proof of service, and a short note confirming no decision was issued before the effective date. Expect to be asked for it on every disposal and every funding drawdown. Our note on getting consultee responses and the officer's case file covers how to obtain the authority's own record of what happened.
When chasing beats serving a notice
Most of the time it does. A notice is a one-shot move that converts a negotiation into a fixed outcome, and the outcome is whatever you happened to submit.
- Confirm the condition is not an excluded description before anything else.
- Ask the case officer for a target date in writing, and ask what is outstanding.
- If the delay is a consultee response, chase the consultee directly and copy the officer.
- If the condition is excluded and the authority has gone silent, consider the non-determination route instead, which our guide on appealing non-determination sets out.
- Serve a notice only when the submitted detail is one you are content to be held to.
Where the delay has knock-on effects for an obligation, the position may need unpicking alongside the agreement itself, and varying a section 106 agreement after permission is the companion piece.
Clearing conditions goes faster when the supporting document behind each one is already drafted to the right structure. Browse the 66 report types and start a draft for the condition you are stuck on.
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
How long must I wait before serving a deemed discharge notice?
Six weeks must have passed since the authority received your application for approval of the condition, unless you have agreed a longer period in writing. The notice itself must then specify a date at least 14 days after the day you give it. Check the current procedural wording in the Development Management Procedure Order 2015 before relying on those periods.
Does a deemed discharge apply to every planning condition?
No. Schedule 6 to the Development Management Procedure Order 2015 excludes whole descriptions of condition, including those on permissions subject to environmental impact assessment, those engaging the habitats regime, contamination, flood risk and drainage, reserved matters, and conditions securing what a planning obligation requires.
What exactly gets approved by a deemed discharge?
The detail you submitted, in the form you submitted it. There is no opportunity for the authority to negotiate a change, so any error in the drawings or calculations becomes part of the approved scheme. That is the main reason to prefer chasing a decision where a decision looks likely within a few weeks.
Can the council still refuse after I have served the notice?
Yes. If the authority issues a decision before the date your notice specifies, that decision takes effect and the deemed discharge does not happen. A refusal in that window leaves you with a refusal you can appeal, so the notice does not remove the authority's ability to decide.
Will a lender accept a deemed discharge instead of a decision notice?
Expect questions. There is no council document to produce, so you need the application, the written acknowledgement of receipt, the notice, proof of service and confirmation that no decision was issued. Assemble that pack at the time rather than reconstructing it during a sale or a drawdown.
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.