United Kingdom

Pre-Commencement Conditions: Are you on the LPAs Naughty list this year?

It’s that time of the year again – no not Christmas party season, although the fairy lights, tinsel and champagne are definitely in place – but solar farm building season. Due to the annual FiT/ROC connection deadline of 31st of March, there is always a big push to build out solar farms over the winter. This year is even more pressing, with the closure of the ROC scheme to solar PV going forward.

One thing that can delay the start of construction is the requirement to discharge pre-commencement conditions (PCCs), which have a statutory determination period of 8 weeks (and failure to do so pre-construction could well land you on that naughty list!).

Therefore, I welcomed the Government’s announcement in October that the Neighbourhood Planning Bill would include reforms to planning conditions that would require LPAs to get written approval from applicants before imposing PCCs. Their Factsheet on this states that ‘The authority could not grant planning permission subject to pre-commencement conditions unless written agreement had been given by the applicant to the terms of the condition’. Where agreement cannot be met, the LPA has the option of either rewording the condition as a compliance condition, removing the condition – or if they feel approval cannot be granted without the information, then they can refuse the application.

On first look this seems like an eminently sensible approach. Too often we have been the recipients of unnecessary PCCs. For example, PCCs requiring the submission of management plans already submitted with and assessed as part of the application. This results in a farcical situation where we are re-submitting documents that have already been assessed as acceptable, and waiting up to 8 weeks for statutory consultee approval to be re-confirmed and the condition formally discharged.

However, ultimately the power still lies with the LPA, and there have been some concerns that where an applicant does not agree to proposed PCCs, the LPA might simply sit on the application until they agree. With the upcoming expansion of the ‘special measures’ regime meaning more LPAs could face being placed in special measures for failure to meet determination targets, I would not expect such tactics to be widespread. Perhaps more likely might be an abrupt refusal of planning permission if the LPA has run out of time to negotiate planning conditions.

It will be interesting to watch how the proposals progress, and to see how it works in practice. I am hopeful that if all parties enter into discussions on conditions in the spirit intended by the reforms that it will have a positive impact on the delivery of development projects.

Thankfully, for the portfolio of sites Lightsource aims to build out this winter, the final PCCs were discharged a couple of weeks ago – so from a planning perspective at least, Santa’s sleigh is packed and ready to go!

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