Pre-commencement conditions and the agreement rule

A pre-commencement condition is one that has to be satisfied before development begins, and since 1 October 2018 a local planning authority cannot impose one without the applicant's written agreement. That is the whole of the pre-commencement condition meaning in practical terms, and it changed the balance of the conditions discussion more than most reforms of its size.

The agreement requirement is not absolute. Where the authority serves notice in the prescribed way and the applicant says nothing within the period allowed, it can impose the condition anyway. Silence is the trap.

What a pre-commencement condition is

Two kinds of condition fall within the definition. The first has to be complied with before any development begins. The second prohibits development beginning until a specified matter has been approved by the authority.

The practical signature is wording such as "no development shall take place until" or "prior to the start of works on site". A condition requiring approval of materials before the superstructure is built, or landscaping details before occupation, is not a pre-commencement condition, because development can lawfully begin while it is outstanding.

That distinction is the lever. Most conditions an officer drafts as pre-commencement can be redrafted to bite at a later trigger without losing their purpose.

The statutory restriction and where it came from

Section 100ZA of the Town and Country Planning Act 1990, inserted by the Neighbourhood Planning Act 2017, provides that planning permission may not be granted subject to a pre-commencement condition without the written agreement of the applicant, except in circumstances prescribed by regulations.

The policy reason was delay. Government took the view that authorities were loading permissions with conditions requiring approval before a spade went into the ground, and that each one added weeks to a scheme while adding little to the quality of the development. The six policy tests for conditions were already in place, requiring a condition to be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. Section 100ZA added a procedural check on top of the policy tests.

The prescribed exception is the part consultants need to know. Where the authority gives the applicant notice of the proposed condition, its full text and the reasons for it, and the applicant does not substantively respond within ten working days, the written agreement requirement falls away. In other words the applicant has a short window to object or to propose alternative wording, and losing that window costs the protection.

How the restriction changes a decision in practice

What this produces is an email, usually late in the determination period, listing draft conditions and asking the applicant to agree the pre-commencement ones. It is often sent at the point the officer is writing the report, which means a day or two before the decision.

Three responses are available, and only one of them is usually right.

And agreeing everything is quick and sometimes correct, where each condition does need to be resolved before any work starts. Refusing everything risks the authority refusing the application instead, because an officer who cannot secure a necessary safeguard by condition has to recommend refusal.

The third response is the useful one: agree the conditions that must come first, and for the rest propose a later trigger with reasons. A drainage condition can often bite before the construction of any impermeable surface rather than before demolition. A materials condition can bite before the superstructure. A construction management plan belongs before the start, because its purpose is to control the first lorry movement.

Keep the exchange on the file. Where a condition is later disputed, the correspondence showing what was agreed and why is the evidence, and it also feeds straight into a condition compliance tracker for the consented scheme.

An illustrative exchange over condition wording

Illustrative example. A consultant acting on a fourteen dwelling scheme receives eleven draft conditions, six of them pre-commencement, nine working days before the target date.

Three of the six survive scrutiny. The archaeological written scheme of investigation must precede any ground disturbance, since the evaluation is the point. The construction traffic management plan must precede the first delivery. The tree protection fencing details must precede site clearance, for the obvious reason.

The other three move. The external materials condition becomes pre-superstructure, so the show home can be set out while samples are approved. The boundary treatment condition becomes pre-occupation of the first dwelling. The electric vehicle charging specification becomes pre-occupation of each plot.

The response goes back on day four with substitute wording for each of the three, accepting the other three in terms. The officer accepts two of the three substitutions and explains why the third has to stay. That is a normal outcome, and it has taken the critical path down by several weeks without weakening a single safeguard.

What it gets confused with

Four confusions come up repeatedly.

A Grampian condition is a condition requiring works on land outside the applicant's control, usually a highway improvement. Grampian conditions are often, but not always, pre-commencement, and the section 100ZA procedure applies to them in the same way as to any other.

A condition precedent, sometimes called a true condition precedent, is the narrower category the courts have identified as going to the heart of the permission. Development begun in breach of such a condition is unlawful, and the long-standing principle from the case law is that the breach cannot be cured retrospectively by later compliance. The permission can therefore expire unimplemented while the developer believes work has started.

Deemed discharge is a separate mechanism altogether. It lets an applicant treat certain details conditions as approved where the authority has not determined the application for approval in time, with exclusions, and it is worth understanding the difference between deemed discharge and waiting for a condition decision.

A pre-occupation condition is not caught by section 100ZA at all. Neither is a condition on a reserved matters approval that does not restrict the start of development.

Checking and discharging the condition on a site

Start with the decision notice, because the condition text on it is the only text that counts. Note which conditions restrict the start of works, and read the reason attached to each, since the reason defines what the authority needs to see before it can discharge.

Then take four steps in order.

1. List the pre-commencement conditions with the information each one requires and who will produce it.
2. Submit the applications for approval of details as a batch rather than individually, since the fee is charged per request and batching saves both money and officer time.
3. Allow eight weeks for determination of each request, and start earlier than feels necessary. Discharge applications are routinely slower than the headline period.
4. Get the written discharge before any work begins, including site clearance and demolition, which both count as a start for many conditions.

Samples and material approvals deserve particular attention, because physical approval of materials and samples depends on the officer attending site, and that scheduling is outside your control.

Where a condition looks unreasonable after the event, a section 73 application to vary it is available, as is an appeal against the condition within the normal appeal period. Neither is quick, which is why the ten working day window at the drafting stage is the least costly moment to fix the wording.

PlanScope drafts the supporting documents that condition discharge usually depends on, across its 66 report types, from construction management plans to drainage strategies. Enter your postcode on PlanScope to see which reports your site is likely to need.

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, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.