Government policy on deemed discharge is sensitive to protection and control

We have written an article for Waste Planning magazine.

You can read the article in full below, and on the Waste Planning website here. This article is behind a paywall.

The development management system is often identified as a major reason why development schemes can be slow to progress.

Concern about planning delay is longstanding. Successive governments have introduced measures to reduce it and this government is seemingly not bucking the trend. It has just announced plans to deregulate a particular aspect of the planning approval process – namely the discharge of planning conditions that require the further approval of the local planning authority (LPA) on detailed matters.

The current approval process can cause planning delay because the development can only proceed lawfully once all necessary official authorisations have been obtained. Some schemes are authorised by multiple planning permissions, and these have the potential to be granted subject to conditions which must be discharged by the LPA. The scope for layers of delay can be seen.

To address this, the government has announced plans to pursue its proposals that a deemed discharge regime should apply to some types of planning conditions, if the LPA does not make a timely decision. A deemed discharge would mean the planning condition would be treated as approved where a decision has not been made by the LPA within the relevant period.

The Infrastructure Bill, currently making its way through parliament, introduced this concept. It contains the enabling powers that will allow a deemed discharge regime to be introduced. After the enabling powers have been confirmed, supporting legislation will bring forward the procedural details. But this will not apply to all types of condition, and the government has so far identified various exemptions to the regime, including conditions attached to development that is subject to an Environmental Impact Assessment (EIA), and reserved matters conditions attached to an outline planning permission which require approval of details.

Given that many waste schemes are captured by the requirement to be subject to an EIA, it may not be possible for primary waste schemes to take advantage of this deeming measure. But the measure will still assist operators seeking consent for other aspects of a scheme where planning permission is still granted subject to conditions to be discharged by the specific approval of the LPA.

Some commentators have raised concerns about the government’s proposed approach – namely that the benefit of the proposal is so diluted by the operation of the exemptions that it becomes of limited value for anyone bringing forward a scheme of any significance, as that will be almost always be subject to an EIA.

The government’s approach seems legitimate. It balances the need to protect the more sensitive schemes and to retain an adequate measure of control with the LPAs while, despite LPA opposition, applying deeming provisions widely to many schemes.

The government is looking at how best to accommodate LPA concerns about the operational difficulties that the proposals could present. The Department for Communities and Local Government has said it will make its expectations of third parties clear in guidance, and that parties will be able to agree an extension to the approval timetable in cases where third-party advice is sought.

Originally published on 2 December 2014.