Discharging a condition after the deadline has passed

If you need to discharge a condition out of time, the question that decides how serious it is has nothing to do with the deadline in the condition. It is whether work has already started. A late approval on a scheme that has not begun is paperwork. A late approval on a scheme where the foundations went in last autumn, under a condition that required details before any development, can mean the permission was never lawfully implemented at all.

So establish three dates before you write to the authority: the date of the permission, the date the permission expires, and the date work first started on site.

Why conditions carry deadlines at all

Conditions have to be enforceable and precise, which is why Planning Practice Guidance on the use of planning conditions expects each one to be necessary, relevant to planning and to the development, enforceable, precise and reasonable in all other respects. A condition that says details shall be approved, without saying when, is close to useless.

So officers attach a trigger. Before development begins. Before the dwelling is first occupied. Before the external walls are built above damp proof course. Within six months of the first occupation. Each of those triggers is doing a different job, and the one that causes trouble is the first.

Conditions dealing with contamination, archaeology, drainage, ground levels, tree protection, demolition method and construction management are usually tied to the start of work for the obvious reason that approving them afterwards achieves nothing. Those are the conditions courts have treated as fundamental.

What happens if you started work first

The principle comes from Whitley and Sons v Secretary of State for Wales, decided in 1992: operations carried out in breach of a condition are not carried out under the permission, so they do not amount to a lawful start. If the permission then runs out of time before a valid start is made, there is no permission to build under, and everything already built is unauthorised.

Later cases pulled back from the hardest version of that rule. Hart Aggregates, in 2005, held that not every condition expressed as a precondition is a true condition precedent, and that breach of a condition going to detail rather than to the fundamentals does not necessarily invalidate the start. The Court of Appeal in Greyfort Properties, in 2011, applied the stricter view where a condition requiring approval of floor levels before development had never been complied with, and the permission was held never to have been implemented.

What that means in practice is a judgement about the particular condition. Ask how the condition is worded, whether it goes to something fundamental about the scheme, whether any part of it was complied with in substance, and whether the authority has acquiesced over a period. Then take advice, because the consequence is the validity of the whole permission rather than a procedural telling off.

Whether late approval cures the breach

Often, yes, and the timing is everything. The Whitley principle carries its own exception: where the required approval is applied for and granted while the permission is still capable of implementation, the earlier works can be treated as lawfully carried out under the permission.

That makes the expiry date the date to work backwards from. A permission with the standard three year limit for making a start, where a discharge application went in during month 33 and was approved in month 35, is in a very different position from one where the three years ran out last spring.

Where the permission has expired and the development is substantially built, the usual routes are a retrospective planning application for the development as built, or an application for a certificate of lawfulness once the enforcement time limit has run. Neither is comfortable, and both are more expensive than a discharge application submitted on time.

The authority's discretion, and how it is usually exercised

An authority can accept a late request. It can also decline to determine it on the basis that the condition can no longer be complied with, and some do where the condition required something to be done before an event that has already happened.

What the authority cannot do is pretend the breach away, because the condition remains on the permission and a buyer's solicitor will find it. Enforcement is discretionary and has to be expedient, and councils rarely pursue a condition breach that has caused no harm and has been remedied. They do pursue breaches of contamination, drainage, tree protection and construction management conditions, because the harm is real and the complaint usually comes from a neighbour.

Where consultees are involved, their response drives the outcome, and getting the consultee responses early tells you whether approval is realistic. If the authority sits on the request, section 74A deemed discharge may be available, and if not, the options are the same as on any undetermined application: appealing non-determination or waiting it out.

Fees, and the trap of splitting requests

The fee for a request for approval of details is set in the national fee regulations, indexed, and charged per request rather than per condition. A single submission covering conditions 4, 7, 9 and 12 costs one fee. Four separate emails cost four.

Two practical consequences. Group the conditions, and submit them together with a covering schedule listing each condition number, its wording and the document that answers it. And do not submit a condition you are not ready to discharge just because it shares a fee, because a partial refusal on one condition can hold up the certificate you need for the others. Our note on how the fee regulations work sets out where reductions and exemptions apply.

Ask for a written confirmation of discharge rather than relying on an email saying the details look fine. The formal notice is the document that matters on sale.

Evidence to send with a late request

A late submission needs to answer the question the condition was asking and the question the officer is now asking, which is what was built before approval.

• A schedule listing each condition, its trigger, and the date the relevant work was carried out
• As-built drawings where the work has already happened, clearly labelled as as-built
• Dated site photographs of the stages now covered up
• Test results, certificates and specifications from the contractor or specialist
• Material samples, or photographs of samples with a reference
• A short covering statement that is honest about the sequence

Do not describe work already done as proposed. Officers read dozens of these and the pretence gets noticed, and then everything in the submission is scrutinised. Where the condition requires a report, the relevant report type is a better answer than a letter: the list of the supporting documents the condition refers to is a useful cross-check on what the officer actually expects.

Keeping it from happening on the next permission

Three habits remove most of the risk.

First, use section 100ZA. Since 2018 an authority cannot impose a condition requiring approval before work begins without the applicant's written agreement, under the procedure in the regulations. That is a lever at the decision stage, and the right time to argue that a condition should bite before occupation rather than before development begins. Most officers will accept the change for conditions about materials, landscaping and boundary treatment.

Second, make the discharge programme part of the build programme. List every condition with its trigger and its lead time on the day the decision notice arrives, and work out which ones need a specialist report with a seasonal survey window.

Third, if a condition is wrong or unworkable, apply under section 73 to vary it rather than quietly ignoring it. The Levelling-up and Regeneration Act 2023 inserted a further route at section 73B for varying a permission where the effect would not be substantially different, so check whether that provision is in force and available before choosing between them.

One honest uncertainty: whether a particular condition of this kind is a true condition precedent is a question of construction on which reasonable advisers differ, and it is only finally answered by a court. That is a good reason to treat the deadline in the condition as real.

Enter your postcode on PlanScope to see which reports your outstanding conditions are likely to need.

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.