Deemed discharge of planning conditions under section 74A

Deemed discharge of conditions lets a developer treat details as approved when the council has failed to decide an application to discharge a planning condition. It sits in section 74A of the Town and Country Planning Act 1990, it has existed since 2015, and almost nobody uses it. The reason is that the exclusions in Schedule 6 to the Development Management Procedure Order 2015 remove most of the conditions that actually hold up a start on site.

Knowing how it works is still worth an hour of your time, because the threat of a deemed discharge notice moves a stalled application in a way that a chasing email does not.

What deemed discharge does

The mechanism applies to an application for approval of details required by a condition on a planning permission. You submit the details in the normal way. If the authority does not determine the application within the relevant period, you may serve a deemed discharge notice, and the approval is then treated as given.

The notice cannot be served early. The relevant period has to expire first, which is normally eight weeks from validation or whatever longer period you agreed in writing. The notice itself has to identify the permission, the condition, the application and the date on which the deemed discharge takes effect, and that date cannot be less than 14 days after the notice is given.

What is deemed approved is what you applied for. Not what the officer would have approved, and not a corrected version of your submission. That is the crux of the risk, and it is why the mechanism rewards a careful application and punishes a thin one.

Which conditions are excluded from the mechanism

Schedule 6 to the Development Management Procedure Order 2015 sets out descriptions of conditions to which deemed discharge does not apply, and the list is long enough to swallow the rule in most real cases.

Conditions on development that is subject to environmental impact assessment are outside it. So are conditions where approval engages the Conservation of Habitats and Species Regulations 2017. Several other categories of condition, including those tied to other consenting regimes, are also excluded. Read the Schedule itself rather than any summary, including this one, because the exclusions are drafted by description and a condition can fall inside one without being obviously about that subject.

The pattern is consistent: the more the condition protects a third party interest or another regulator's remit, the less likely deemed discharge is available. Conditions about materials, boundary treatments, external lighting details and landscaping schemes are the ones most often left inside the mechanism, and they are the ones authorities usually manage to determine on time.

The notice and the timing

The sequence is short.

1. Submit the discharge application with everything the condition asks for, and pay the fee.
2. Confirm the validation date in writing and diarise the end of the relevant period.
3. If nothing has been decided by then, serve the deemed discharge notice in writing on the authority.
4. Specify a deemed discharge date at least 14 days ahead.
5. Keep proof of service and the full submission pack.

An authority that receives a notice will often determine the application inside the 14 days, which is usually the outcome you actually wanted. Where it does not, the condition is treated as discharged on the stated date.

One trap in the timing. Where the authority asks for more information partway through, and you provide it, the relevant period generally still runs from the original validation unless you agreed an extension. Agreeing an extension is often sensible, and it also removes your route to a notice. Decide which you want before you sign the email.

Why it is used so rarely

Three reasons, in order of weight.

The exclusions remove the conditions that matter. Conditions that must be cleared before work starts, covering drainage, contamination, archaeology and highways, are exactly the ones a developer wants discharged quickly, and they are the ones most likely to sit outside the mechanism or to engage another regulator.

Lenders and purchasers dislike it. A deemed discharge produces no decision notice, only your notice and the passage of time. A purchaser's solicitor reviewing the title six years later finds a condition with no approval against it and raises an enquiry, and the answer takes explaining.

And it damages the working relationship. Development management is a repeat game. An agent who serves notices on a hard-pressed team will find the next application read closely, which is a rational response even if it is not an admirable one.

Risks of relying on it

The deemed approval covers the details you submitted. If those details were incomplete, or did not in fact address what the condition required, you may hold an approval of something that does not discharge the condition on its proper construction. The authority can then take enforcement action on the basis that the condition remains unsatisfied.

There is also the question of what a deemed discharge does not fix. It does not cure a defective application, it does not extend the time limit for implementation, and it does not help where the condition requires approval by a body other than the local planning authority.

Where the details go to a matter that could later be challenged by a third party, the absence of a reasoned decision is a weakness. A neighbour group with a judicial review interest will find a deemed discharge easier to attack than a considered approval, because there is no officer report explaining why the scheme is acceptable.

Practical alternatives when an authority is slow

Start with the boring options, which work more often than they should.

Ask for a named officer and a target date, and put the request in writing. Offer to meet the officer on site. Where the delay is caused by a consultee rather than the case officer, contact the consultee directly and ask what would resolve their holding objection, because case officers frequently do not chase.

Where a scheme is large enough, a planning performance agreement sets out the timetable and the resourcing at the start, and it is far more effective than any remedy after the fact. On smaller schemes, agree an extension of time in exchange for a firm date rather than an open-ended one.

The formal alternative is an appeal against non-determination of the discharge application. It is slower than a deemed discharge notice and it produces a proper decision, which is the trade. Where the condition is unreasonable rather than merely slow, an application to vary or remove it under section 73 is the cleaner route, in the same way that a landowner uses a section 73 application to lift an occupancy restriction.

Recording the position for a future purchaser

Build the file at the time, because reconstructing it later is much harder.

Keep the discharge application as submitted with its drawing numbers and validation acknowledgement, the correspondence showing the relevant period and any agreed extension, the deemed discharge notice with proof of service, and a short note explaining the position and the date the discharge took effect. Store it with the decision notice for the permission itself.

The local land charges register will not show a deemed discharge, so the file is the only evidence. Where the works are later relied on as lawful, the evidence needed for a certificate of lawfulness follows a similar discipline: dated, contemporaneous, and specific about what was done.

If the condition is one you will be asked about at sale, consider submitting a fresh discharge application after the works are complete simply to obtain a decision notice. It costs a fee and removes an enquiry that can otherwise delay a transaction. That is not a legal requirement, and reasonable people disagree about whether it is worth doing.

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. Browse the report index to see which supporting documents a condition is likely to ask for.