Deemed discharge of planning conditions

Deemed discharge lets an applicant treat certain planning conditions as approved when the local planning authority has failed to determine an application for approval of details within the time allowed. The mechanism sits in section 74A of the Town and Country Planning Act 1990, inserted by the Infrastructure Act 2015, with the procedure and the exclusions set out in the Development Management Procedure Order 2015.

It is used far less than it could be. Part of that is nervousness about the effect on a working relationship with a case officer, and part is that the exclusions remove many of the conditions people most want cleared.

What deemed discharge achieves

The outcome is that the condition is treated as discharged in the terms of the application you submitted. No decision notice is issued, and the authority does not confirm anything. The legal effect flows from the statute and the notice you served.

That last point governs everything that follows. There is no document from the council saying the details are approved, so what you approved yourself has to be unambiguous, complete and correct. A deemed discharge of a vaguely worded submission gives you a vaguely defined approval.

The mechanism applies to conditions that require the approval of details by the authority. It does not apply to conditions that simply require something to be done, and it does not cure a breach of condition that has already occurred.

The notice procedure and the clock

The sequence has four steps and each one has a date attached.

1. Submit the application for approval of details in the normal way, with the correct fee and everything the condition asks for.
2. Wait. The deemed discharge notice cannot be given until a set period has run from the date the authority received the application, which is six weeks under the current Order.
3. Serve the deemed discharge notice on the authority in writing, identifying the permission, the condition and the application, and specifying the date on which deemed discharge is to take effect. That date has to be at least 14 days after the notice is given, and it cannot fall before the end of the period for determining the application.
4. If the authority has not determined the application by the specified date, the condition is treated as discharged on that date.

Check the periods in article 30 of the Order before you diarise them, because the figures have changed once already and the article is the authoritative source. Where you have agreed a longer determination period with the authority in writing, that agreement displaces the default and the notice cannot bite earlier.

Serve the notice in a way that proves receipt. An email to the case officer alone is not a good record.

Conditions the Order excludes

This is where most attempts stop. Schedule 6 to the Order lists descriptions of conditions to which deemed discharge does not apply, and it is a long list that covers a substantial share of the technical conditions on a typical permission.

Development that is EIA development is excluded. So is development where an appropriate assessment under the Habitats Regulations is engaged. Conditions falling within several other described categories are excluded as well, and the descriptions cover ground that matters to most schemes.

Read Schedule 6 against the actual wording of your condition rather than against its subject matter. The exclusions are drafted by reference to what the condition requires rather than by the label the authority has given it, so two conditions about drainage on two permissions can fall on different sides of the line.

If the condition is excluded, the deemed discharge route is closed and you are back to the alternatives further down.

Where the mechanism cannot help

Several situations look like candidates and are not.

An authority that has determined the application and refused to approve the details has determined it, so there is nothing to deem. The route then is an appeal against that refusal, or a revised submission.

A pre-commencement condition where development has already started sits in a different position, because the breach has happened and deemed discharge does not retrospectively authorise it. The same logic applies to a condition requiring approval before a particular phase where that phase is under way.

A condition on a listed building consent is not a planning condition. And where the underlying application was invalid, for example because the fee was not paid or the submission did not address what the condition required, the clock may never have started.

The risks of relying on it

The practical objections are worth taking seriously, because the mechanism shifts risk onto the applicant.

You own the ambiguity. If your drainage details omit a calculation the officer would have asked for, the condition is discharged in those terms and the gap is yours.

Nobody will confirm it later. A purchaser's solicitor, a lender or a building control body may ask for evidence that the condition was discharged, and all you have is your own paperwork. That is legally sufficient and commercially awkward.

The authority may disagree that the mechanism applied at all, usually by arguing the condition fell within Schedule 6. A dispute about that surfaces years later, when the site is being sold and nobody at the council remembers the file.

And there is the relationship. On a scheme with 14 conditions and a long build programme, forcing one through can cost goodwill on the other 13. Use it where the delay is unreasonable and the condition is straightforward, not as a default.

Records to keep

Build the file as you go, because reconstructing it later is difficult.

• The application for approval of details, with the date of receipt acknowledged by the authority.
• The fee receipt.
• Everything submitted, in the form submitted, with a contents list.
• The deemed discharge notice, with proof of service and the date given.
• A note of the date on which deemed discharge took effect.
• Any correspondence showing the authority did not determine the application.

Where the sums are large, consider applying for a certificate of lawfulness of existing use or development to put the position beyond argument once works are complete. It is not a route everyone takes, and it is worth considering on a site that will be sold.

Practical alternatives

Most delays are better solved without the notice.

Agree an extension of time in writing. Authorities will usually do this and it protects both sides. Escalate politely to the case officer's team leader with a short chronology. Ask whether a partial approval is possible, so that the parts that are agreed can be signed off and the contested element dealt with separately.

Where the condition itself is the problem rather than the delay, an application under section 73 to vary or remove it puts the substance back in front of the authority with a right of appeal attached. And where the authority simply does not determine the application, an appeal against non-determination is available on the same principle as the deemed refusal appeal for a planning application.

Deemed discharge should not be confused with the deemed consent that arises under the prior approval regime, where a failure to determine within the prescribed period can allow the development to proceed. The two mechanisms look similar and work differently, as our notes on how prior approval works and the 56 day deadline explain.

This is general guidance, not legal advice. Check the current periods and the Schedule 6 exclusions against the Order, and take advice from a qualified professional before serving a notice. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.

Browse all 66 PlanScope report types to see which supporting documents a condition is likely to call for.