Deemed discharge or waiting for a condition decision

Deemed discharge of conditions lets an applicant treat a condition as discharged when the authority has not decided the details in time. It is a statutory right under section 74A of the Town and Country Planning Act 1990, it has been available since 2015, and hardly anybody uses it. The reason is not that it fails to work. The reason is that on most of the conditions where a decision is slow, the procedure is either excluded or commercially unwise.

Knowing which category your condition falls into takes about ten minutes, and it is worth doing before you spend six weeks chasing a case officer.

How deemed discharge operates

The procedure applies to an application for the approval of details required by a condition on a planning permission granted on an application. Where the authority has not given a decision, the applicant serves a deemed discharge notice on the authority, and on the date specified in that notice the condition is treated as having been discharged.

The timing rules are the part to get right.

The notice cannot be served before the end of the prescribed period, which runs for six weeks beginning with the day after the day the authority received the application, unless a longer period has been agreed in writing. The notice must specify the date on which deemed discharge takes effect, and that date must be at least 14 days after the notice is given. The fee for the application must have been paid.

So the earliest realistic effect is a little over eight weeks from submission, which is not a shortcut. It is a backstop.

Conditions excluded from the procedure

Schedule 6 to the Town and Country Planning (Development Management Procedure) (England) Order 2015 lists the descriptions of condition to which deemed discharge does not apply, and the list covers the categories where getting the details wrong carries the most risk. Environmental impact assessment development, development requiring an appropriate assessment under the habitats legislation, and conditions dealing with contaminated land and flood risk are among them.

Read the Schedule itself rather than a summary, and read it before you write to the authority, because serving a notice in respect of an excluded condition achieves nothing and tells the authority you have not checked.

The practical pattern is that the conditions most likely to be slow are the technical ones, and the technical ones are the most likely to be excluded or to need input the authority has to obtain from a consultee.

Where relying on it is risky

Deemed discharge means the condition is treated as discharged. It does not mean the details you submitted are approved as adequate.

That distinction matters in four places.

Building out to details that a consultee would have objected to leaves the physical problem in place. A drainage layout that the lead local flood authority would have rejected still floods. Deemed discharge of the condition attached to a Drainage Strategy does not make the strategy work.

Purchasers and funders ask questions. A solicitor reviewing a title pack will treat a decision notice as clean and a deemed discharge as something to enquire about. Expect to supply the notice, proof of service and the fee receipt, and expect a requisition if any of them is missing.

Other regimes are untouched. Building control approval, highway agreements, water undertaker adoption and environmental permits proceed on their own timetables and are unaffected.

And relations with the authority matter over the life of a scheme. Serving a notice on a condition where the officer was waiting for a consultee response is remembered.

There is a fifth point that is harder to price. A deemed discharge leaves no record of the authority's view on the details, so if a dispute arises later about whether what was built matched what was submitted, there is no approval to compare it against. On a long scheme with several phases that absence accumulates.

Where waiting is the better option

Wait where the details need the authority's technical judgement rather than its administrative attention. Drainage adoption, highway works, tree protection on a constrained site, archaeological written schemes of investigation and contaminated land verification all fall into that group.

Wait also where you need the decision notice as a document. Sales, refinancing and the release of a section 106 obligation often turn on producing an approval, and a deemed discharge notice does the job less cleanly.

And wait where a condition is pre-commencement and the authority's position is unclear. Commencing in reliance on a deemed discharge and then discovering the authority disputes the validity of the notice is an expensive place to be.

Conditions requiring a Construction Management Plan or a tree protection scheme are usually better resolved by a meeting than by a notice, because the officer's objection is normally to one detail rather than to the whole submission. Tree conditions cause particular confusion, and the difference between a tree survey and a TPO application explains a related trap.

Record keeping for a later sale

If you do use the procedure, build the file as you go, because reconstructing it two years later is unpleasant.

• The application for approval of details, with the date of submission and evidence of receipt.
• The fee payment receipt.
• Any written agreement extending the prescribed period.
• The deemed discharge notice, with the specified effective date.
• Evidence of service on the authority, addressed correctly.
• Correspondence showing the authority did not determine the application.

Keep it with the decision notice and the approved plans. A buyer's solicitor will ask for all six items and will not proceed without them.

Practical steps when an authority is slow

A sequence that resolves most cases without a notice.

1. Confirm the application was validated and the fee taken, because a request sitting unvalidated is the commonest cause of apparent delay.
2. Ask which consultee response is outstanding, and whether the officer would like you to chase it directly. Often they would.
3. Offer a written extension of the period in exchange for a date certain. Authorities respond to this because it protects their performance figures.
4. Escalate once, politely, to the team leader, with a short chronology.
5. Where the condition is not excluded and the delay is administrative rather than technical, prepare the notice and tell the officer you intend to serve it. That alone produces a decision more often than the notice itself.
6. Serve the notice only when you are content to build to your own submitted details.

One more thing about fees. The charge for an application to discharge conditions is set in the fees regulations, is indexed, and is payable per request rather than per condition, so grouping conditions into a single submission is cheaper than sending them one at a time. It also gives the officer one deadline to work to instead of five. Take the current figure from the published schedule.

Two alternatives are worth remembering. A condition that is impossible or unnecessary can be removed by an application under section 73. A drafting error in an approved drawing reference can sometimes be fixed by a non-material amendment under section 96A, which is faster than either route.

The honest position on this procedure is that it is a lever rather than a remedy. It works best when it is never served.

Browse the full report index for the documents that condition discharge requests usually turn on. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance rather than legal advice, so check the position with your local planning authority or a qualified professional before relying on it.