Pre-commencement condition: the consent you now need
Section 100ZA of the Town and Country Planning Act 1990 stops a council imposing a pre-commencement condition without your written agreement or a prescribed notice. Here is how the procedure works and what to do with a condition schedule.
A pre-commencement condition is a planning condition that has to be discharged before you are allowed to start work on site. Since 2017 the local planning authority cannot simply impose one on you. Section 100ZA of the Town and Country Planning Act 1990 bars the grant of permission subject to a pre-commencement condition unless the applicant has agreed to it in writing, or unless the authority has followed a prescribed notice procedure first. For anyone running a development programme, that changes who holds the pen when the officer's draft condition list lands two days before committee.
The practical effect is narrow but real. You can still end up with eight conditions to discharge before a single spade goes in. What you cannot be given, without either your signature or a served notice, is a condition the officer invented at the last minute and never put to you.
What the term actually covers
Section 100ZA(8) defines a pre-commencement condition as any condition imposed on a grant of planning permission that must be complied with before the development begins, or before a part of the development begins. The wording matters more than the label. A condition that says "no development shall take place until a scheme for X has been submitted to and approved in writing by the local planning authority" is plainly caught. So is one worded around a phase, a plot or a particular operation, because the definition reaches conditions bearing on part of the development as well as the whole.
Conditions that bite at a later trigger are not pre-commencement conditions. "Prior to first occupation", "prior to the installation of external lighting" and "prior to the first use of the development hereby permitted" all sit outside the definition, which is why officers have drifted towards those triggers where the subject matter allows it. The drafting of the trigger is the thing to read, not the condition number or its position in the list.
Why the authority needs your agreement
The restriction came in through section 14 of the Neighbourhood Planning Act 2017 and was brought into force alongside the Town and Country Planning (Pre-commencement Conditions) Regulations 2018. The policy aim was to stop the practice of loading a permission with conditions that delay a start on site for months when the same matter could be dealt with later or dropped altogether.
Agreement has to be in writing and it has to be agreement to that condition, in those terms. A general email saying you are content with the officer's recommendation is weak evidence. Most agents now respond to the draft condition schedule line by line, agreeing some, proposing a later trigger for others and refusing the rest with a reason. That exchange becomes the record if the condition is later challenged, and the wording you agreed is the wording you are stuck with. Our note on how conditions precedent are drafted goes through the phrasing traps in more detail.
The six tests from national policy still apply on top of this. A condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. Planning Practice Guidance on the use of planning conditions sets those out, and a condition that fails them can be unlawful whether or not you agreed to it. Agreement does not cure a defective condition, though it makes the argument harder to run.
The notice procedure where agreement is withheld
Refusing to agree does not give you a veto. The 2018 Regulations prescribe the circumstance in which the authority may impose the condition anyway: it serves a notice on the applicant setting out the text of the proposed condition, the reason for it and the reason it must be discharged before development begins, and the applicant does not substantively respond within the prescribed period. That period is short, measured in working days from the day after the notice is given, so check the current text of the Regulations on legislation.gov.uk before you assume you have a fortnight.
Three things follow from that. First, somebody in your team has to be watching for the notice, because silence is treated as acquiescence. Second, a response that engages with the substance protects your position even if you cannot reach agreement. Third, a notice served on an agent who has stopped acting is a recurring source of trouble, so update the authority when the agent changes.
And if the authority imposes a pre-commencement condition without agreement and without a valid notice, the condition is open to challenge. The route depends on what you want: an application under section 73 to vary or remove it, an appeal against the condition, or judicial review of the grant itself where time permits. The article on severing an unlawful condition covers what happens to the rest of the permission if one condition falls away.
How it reads on the decision notice
Decision notices rarely flag which conditions are pre-commencement ones, so the first job on receiving a permission is to sort the schedule by trigger. A workable method:
- Read every condition and write down its trigger verbatim.
- Group them into pre-commencement, pre-superstructure or pre-slab, pre-occupation, and ongoing or in-perpetuity.
- For each pre-commencement condition, record the information you need to discharge it, who produces it and the season it depends on.
- Check the file for your written agreement or the authority's notice. If neither exists, raise it before you pay for the surveys.
Seasonal dependencies are where programmes slip. A condition requiring an updated protected species survey before development begins can only be discharged in the survey window, and emergence surveys for bats run from May to September. A condition requiring a written scheme of investigation for archaeology needs the county archaeologist's sign-off, which is not a two-week turnaround in most authorities. Keeping this in one place helps, and a simple condition compliance tracker is worth building before you need it.
An illustrative example
Take an illustrative case: permission for 24 homes on a former paddock, granted with 19 conditions. Four have a pre-commencement trigger. One requires a construction traffic management plan, one a surface water drainage scheme, one a biodiversity gain plan under the Environment Act 2021 regime, and one an arboricultural method statement with tree protection fencing details.
The drainage condition was agreed in writing during determination. The traffic management condition was not put to the applicant at all, and appeared for the first time on the decision notice. The biodiversity gain condition is the statutory one, which operates differently from an ordinary imposed condition. The arboricultural condition was proposed in the officer's draft list, refused by the agent on the basis that the method statement could follow at pre-slab stage, and then imposed following a served notice to which nobody replied in time.
On those facts the traffic management condition is the vulnerable one. The arboricultural condition stands, because the procedure was followed and the response window closed. This example is illustrative only; the analysis on any real site turns on the correspondence file.
What it gets confused with
A Grampian condition prevents development until something happens on land outside the applicant's control, such as a highway improvement. Many Grampian conditions are pre-commencement conditions, but the two ideas are not the same thing: Grampian describes the subject matter, pre-commencement describes the trigger.
Discharge of conditions is the separate application you make to satisfy a condition once you have the information, under article 27 of the Development Management Procedure Order 2015 with its own fee per request. The existence of the discharge route is not an answer to an unreasonable pre-commencement trigger, because the clock on your site start runs while the authority considers the submission. Where that determination drifts, the deemed discharge provisions may help, with a list of exclusions that catches more conditions than people expect.
Reserved matters are not conditions at all. They are the matters left for later approval on an outline permission under article 5 of the 2015 Order, and the restriction in section 100ZA has nothing to do with them.
Checking the position on a live application
Ask the case officer for the draft condition schedule in writing before the decision is issued, and ask specifically which conditions the authority treats as pre-commencement. Most officers will send it. Respond in the same document, condition by condition, with a proposed alternative trigger where you object. Keep the thread.
If the permission has already been issued, the file to request is the correspondence that preceded it. A planning statement submitted at the outset that anticipates the likely conditions and offers sensible triggers tends to produce a shorter pre-commencement list, which is one reason the drafting of the Planning Statement is worth time rather than a template.
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.
Frequently asked questions
Can a council impose a pre-commencement condition without asking me?
Only by following the prescribed notice route. Section 100ZA of the Town and Country Planning Act 1990 requires your written agreement, or a notice served on you setting out the condition, the reason for it and why it must be met before work starts. If you do not respond substantively within the prescribed period, the authority may impose it anyway.
What counts as written agreement to a condition?
Agreement to that condition in those words, recorded in writing. An email confirming you are content with a named draft condition is enough. Broad statements of support for the officer's recommendation are not, and agents normally reply to the draft schedule condition by condition so the record shows exactly what was accepted.
Is a pre-occupation condition the same thing?
No. The statutory definition covers conditions that must be complied with before the development, or part of it, begins. A condition triggered by first occupation, by the start of a use or by the installation of a particular element falls outside it, which is why officers often move subject matter to a later trigger where the planning purpose still works.
How do I remove a pre-commencement condition I never agreed to?
An application under section 73 of the 1990 Act to vary or remove the condition is the usual route, and it can be made without reopening the rest of the permission. An appeal against the condition is available within the statutory period. Judicial review of the grant is possible but tightly time limited, so take advice quickly.
Do the six tests for conditions still apply?
Yes. A condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. Planning Practice Guidance on the use of planning conditions sets the tests out. Agreeing to a condition does not make a defective one lawful, although it weakens the argument that the authority acted unreasonably.
Does the restriction apply to the biodiversity gain condition?
The biodiversity gain condition under the Environment Act 2021 regime is deemed into most permissions by statute rather than imposed by the officer, so it does not go through the agreement process. It still has to be discharged before development begins, and the biodiversity gain plan needs approval from the local planning authority first.
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.