Discharge of conditions: the approval nobody plans for
A decision notice is not the finish line. This explains what discharging a condition means, which conditions need an application, how deemed discharge works and why starting early can void a permission.
Planning permission arrives with conditions attached, and a good number of them say that something must be approved in writing by the local planning authority before you do anything. Discharging a condition means applying for that approval and receiving it. It is a separate application, with its own fee, its own eight week period and its own capacity to stop a build for two months.
Self-builders routinely budget for the planning application and not for this. The decision notice looks like the finish line. It is the point at which a second, quieter process starts.
What discharging a condition means
The formal route is an application for approval of details reserved by a condition, made under Article 27 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. You submit the details the condition asks for, the authority considers them, and it issues a decision confirming that the condition has been discharged in whole or in part.
Not every condition needs this. Conditions fall into rough groups, and only one of them requires an application.
Some conditions are compliance conditions: they tell you what to do and require nothing to be submitted. A condition that development shall be carried out in accordance with the approved drawings is one of these. Some are informative in substance even if they read as conditions. And some require details to be submitted and approved, which is the group that needs an application.
Read each condition and mark which group it belongs to. Applying to discharge a compliance condition wastes a fee and a month.
Conditions that bite before work starts
A condition worded so that no development shall take place until something has been approved is a condition precedent, often called a pre-commencement condition. These are the ones that matter most, because the consequences of ignoring them are structural rather than procedural.
The usual candidates are construction management details, drainage design, contamination investigation, tree protection, archaeological work, ecological mitigation, and materials samples. On a rural site, the ecology and drainage conditions typically take the longest.
Since the Neighbourhood Planning Act 2017, authorities generally have to seek the applicant's written agreement before imposing a pre-commencement condition, which gives you an opportunity at the decision stage to ask for the trigger to be moved. A condition that bites before the first occupation rather than before any development can be the difference between starting in March and starting in June. Ask.
The application, the fee and the period
The mechanics are straightforward once you have done one.
- List every condition on the decision notice and mark those requiring submission.
- Group them, since one application can deal with several conditions and one fee is payable per request rather than per condition.
- Prepare the details the condition actually asks for, reading the wording rather than assuming.
- Submit through the planning portal or the authority's own system.
- Expect a determination period of eight weeks from receipt, unless a longer period is agreed in writing.
A fee is payable and the national fee regulations set it, with figures indexed annually, so take the current amount from the published schedule rather than from an older article. Householder schemes attract a lower fee than other development.
The most common cause of delay is a submission that does not answer the condition. If the condition asks for a scheme for the protection of trees during construction, a tree survey alone will not do, because the survey describes the trees and the condition asks for the protection scheme.
Deemed discharge, and where it does not apply
Section 74A of the Town and Country Planning Act 1990 provides a deemed discharge route. The applicant serves a notice, and if the authority has not determined the application by the date specified, the condition is treated as discharged.
It is narrower than it sounds. The route applies only to certain conditions on certain permissions, and Schedule 6 to the 2015 Order sets out excluded categories, which cover environmental impact assessment development and a number of specific subject areas. Our notes on deemed discharge under section 74A and on the excluded categories go through the mechanics and the exclusions in detail.
Used sparingly it is a useful lever. Used as a first resort it damages a relationship you will need for the rest of the build, and it produces a discharge without a written approval document, which a future purchaser's solicitor may query.
Partial discharge and phased approvals
Authorities can approve details in part, and for a phased development a condition can be discharged in respect of one phase at a time. Both are useful and both need care in the paperwork.
Ask explicitly for partial discharge where that is what you want, and make sure the decision notice records which parts of which condition have been discharged and for which part of the site. A file containing three decision notices that each say the condition is discharged, without saying for what, causes trouble on sale or refinancing.
Keep every decision notice with the deeds rather than in a project folder.
Starting without the discharge
This is the expensive mistake. Where a condition precedent has not been discharged and work begins anyway, the works may be unlawful and may not count as a lawful implementation of the permission.
Two consequences follow. The authority can take enforcement action against the operations carried out. And if the permission is approaching the end of its three year life, the works you thought had implemented it may not have done, leaving you with an expired permission and a site with foundations in it.
Where it has already happened, take advice quickly rather than carrying on. Remedies exist, including a retrospective application, a fresh application, or in some cases an application to vary the condition under section 73, and each gets harder the further the build has progressed. If an application to discharge has been refused, there is a right of appeal, which our note on appealing a refused discharge of conditions explains.
Building a condition schedule at the outset
The day the decision notice arrives, make a table. One row per condition, with columns for the wording, the group it belongs to, whether it requires submission, what trigger point applies, who is responsible for producing the details, the date submitted and the date discharged.
Then work backwards from the intended start date. Eight weeks for determination, plus the time to produce the details, plus a contingency for the authority asking for more. On a self-build with six pre-commencement conditions, that is a three to four month exercise even when everything goes well, and it can run in parallel with your building regulations work rather than after it.
And read the wording of each condition out loud once. A surprising number of disputes come from an assumption about what a condition says rather than from what it says.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
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Frequently asked questions
What does discharge of conditions mean?
It is an application for approval of details reserved by a condition, made under Article 27 of the Development Management Procedure Order 2015. You submit the details the condition requires, the authority considers them, and it issues a decision confirming the condition is discharged in whole or in part. It is separate from the planning application.
How long does it take?
The determination period is eight weeks from receipt unless a longer period is agreed in writing. In practice the biggest delays come from submissions that do not answer the condition as worded, which restart the clock in substance if not in form. Read the condition carefully and supply exactly what it asks for.
Do I need an application for every condition?
No. Many conditions simply require compliance, such as carrying out development in accordance with the approved drawings, and need nothing submitted. Only conditions requiring details to be submitted and approved need an application. Mark each condition on the decision notice by type before spending a fee.
What is deemed discharge?
A route under section 74A of the Town and Country Planning Act 1990 where the applicant serves a notice and the condition is treated as discharged if the authority has not determined the application by a specified date. It applies only to certain conditions, with excluded categories set out in Schedule 6 to the 2015 Order.
What happens if I start before a condition is discharged?
Where a condition precedent has not been discharged, the works may be unlawful and may not count as a lawful implementation of the permission. That exposes you to enforcement action and, if the permission is near the end of its life, can leave you with an expired permission and unauthorised works on site.
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.