The written agreement rule for conditions before works
A council must give notice and obtain written agreement before imposing a condition that bites before development begins. Silence for ten working days counts as agreement.
A local planning authority in England cannot impose a pre-commencement condition without the applicant's written agreement. That rule sits in section 100ZA of the Town and Country Planning Act 1990, inserted by the Neighbourhood Planning Act 2017, with the procedure set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018. The practical effect is a short, formal exchange of notices before the decision is issued, and a deadline most applicants miss because they do not recognise the letter when it arrives.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
Why the rule was introduced
Pre-commencement conditions had become the default drafting habit. Attaching "no development shall begin until" to a condition is easier for an officer than deciding whether the matter really has to be settled first, and it transfers all the programme risk to the applicant.
The 2017 Act responded by making the applicant a party to the decision. An authority that wants a condition to bite before any development starts now has to say so in advance, give its reasons, and get agreement or deemed agreement.
What the rule does not do is stop the condition being imposed. It forces a conversation about timing. In most cases the applicant agrees, because refusing agreement risks a refusal of permission instead.
What the authority must do before imposing one
The regulations set out a notice. It has to reach the applicant before the decision notice, and it has to contain three things: the full text of the proposed condition, the reasons for it, and the reason why it needs to be discharged before development begins.
That third element is the useful one. An authority that cannot articulate why a landscape scheme has to be approved before the first spade goes in, rather than before first occupation, usually ends up redrafting the trigger.
The notice can cover several conditions at once. It is normally issued by email to the agent, and the ten working day clock runs from the day after the notice is given. A notice that goes to a stale email address still counts, so keeping contact details current with the case officer matters more than it sounds.
The applicant's response options
There are three.
- Agree in writing to the condition as drafted, and the authority may impose it.
- Agree to a different wording or a different trigger, negotiated with the officer before the decision is issued.
- Decline to agree, in which case the authority cannot impose that condition in that form.
Option three is not the free win it looks like. If the authority needs the matter settled before works start and cannot secure it by condition, the realistic alternatives are a refusal, or a condition drafted to bite at a later trigger that the authority considers inadequate. Refusing agreement on a condition the officer regards as fundamental invites a recommendation to refuse.
So the rule is really a lever over wording rather than a veto. The best outcome is usually option two.
Timescales and deemed agreement
Silence counts as agreement. If the applicant does not respond within ten working days beginning with the day after the notice is given, the authority may impose the condition as if agreement had been given.
That is the trap. The notice often arrives during the final week of determination, addressed to an agent who is waiting for a decision rather than for correspondence, and it reads like administrative confirmation rather than a question. Ten working days passes quickly over a bank holiday period.
Two habits deal with it. Diarise a response deadline the day any pre-commencement notice arrives. And ask the case officer, at the point the recommendation is being drafted, whether a notice is coming, so it is expected rather than discovered.
Conditions the rule does not cover
The agreement requirement applies to conditions on a grant of planning permission on an application in England, and only to conditions that must be complied with before development begins. Several common situations fall outside it:
- Conditions that bite at a later trigger, such as before the external walls rise above damp proof course level, before first occupation, or before the use starts.
- Conditions on permissions granted by development order, including prior approval decisions.
- Conditions imposed by the Planning Inspectorate on an appeal decision.
- Conditions on permissions in Wales, Scotland and Northern Ireland, where the framework differs and the relevant national procedure applies.
The boundary around "before development begins" can be argued. A condition requiring approval of a construction management plan before any works including demolition or site clearance is a pre-commencement condition. A condition requiring the same plan before above-ground works is not, even though demolition will already be under way.
Negotiating the wording instead of the trigger
The six tests for conditions still apply: necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. National policy and the Planning Practice Guidance chapter on the use of planning conditions set them out, and the current edition of the Framework should be checked for the relevant policy reference before it is cited in a statement.
Most pre-commencement notices can be improved on all six at once. Useful moves:
- Split the condition. Approval of a drainage strategy before works start, approval of the detailed design before above-ground works.
- Narrow the scope. "Before any works other than demolition, site clearance and site set-up" keeps enabling works moving.
- Attach the obligation to a phase rather than the whole site on a phased scheme.
- Remove matters already settled, where the submitted drawings already contain the detail the condition asks for.
An authority is usually willing to accept a split or a phased trigger, because the planning purpose is preserved. It is far less willing to drop the condition entirely.
Where the condition relates to a technical matter you have already evidenced, point to the document. A Construction Traffic Management Plan submitted with the application rarely needs a condition requiring one to be submitted afterwards, and saying so in the response to the notice often removes the condition altogether.
Consequences of building without discharge
A condition precedent that is not discharged before development begins is a problem that compounds. Under the principle in the Whitley line of cases, operations carried out in breach of a condition precedent are not lawful, which means they do not implement the permission. Where the permission is close to expiry, that can leave the applicant with works on the ground, no implemented consent, and a time limit that has passed.
Later discharge does not always cure it. The courts have treated retrospective discharge as capable of validating works in some circumstances and not in others, and the outcome turns on facts, timing and the wording of the condition.
Enforcement is the more common consequence. A breach of condition notice under section 187A carries no right of appeal to the Planning Inspectorate, and the time limit for taking enforcement action in England moved to ten years for breaches occurring on or after 25 April 2024 under the Levelling-up and Regeneration Act 2023. Verify the current position before relying on any limitation period.
Two practical steps protect you. Keep a dated schedule of every condition with its trigger, submitted alongside the Planning Statement so the whole team reads the same list. And submit discharge applications in a sequence that reflects the build programme rather than in the order the conditions appear on the notice, which is covered further in the note on what must be submitted before work starts on site. Where a statutory consultee is behind a condition, clearing a holding objection early is usually faster than discharging the condition afterwards.
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Frequently asked questions
What is a pre-commencement condition?
It is a condition that must be complied with before development begins, or that prohibits development from beginning until it is complied with. A condition requiring approval of a construction management plan before any works including site clearance is one. A condition requiring the same plan before above-ground works is not, because some development may lawfully start first.
How long do I have to respond to a section 100ZA notice?
Ten working days beginning with the day after the notice is given. If you do not respond in that period the authority may impose the condition as though you had agreed to it. Diarise the deadline the day the notice arrives, because the notice often lands in the final week of determination and reads like routine correspondence.
Can I simply refuse to agree to the condition?
You can, and the authority then cannot impose that condition in that form. But if the officer regards the matter as fundamental, the realistic alternative is a recommendation to refuse permission. The rule works better as a lever over wording and triggers than as a veto. Negotiating a split or phased trigger usually gets a better result.
Does the rule apply to prior approval and appeal decisions?
No. The agreement requirement applies to conditions imposed on a grant of planning permission on an application in England. Conditions attached to permissions granted by development order, including prior approval decisions, fall outside it, as do conditions imposed by an Inspector on appeal. Wales, Scotland and Northern Ireland have their own procedures.
What happens if I start work without discharging the condition?
Operations carried out in breach of a condition precedent are generally not lawful and may not implement the permission, which matters where the consent is near expiry. A breach of condition notice under section 187A carries no right of appeal. Whether later discharge cures the position turns on the facts and the wording of the condition.
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.