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Options when prior-to-commencement conditions are not discharged

Jeff Downing, modified 3 Months ago.

Options when prior-to-commencement conditions are not discharged

New Member Posts: 5 Join Date: 16/08/19 Recent Posts

What options are there when prior-to-commencement conditions are breached

My question - What are the options available when prior-to-commencement conditions have not been complied with. We wish to avoid the breach of the conditions being hidden by that option? 

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We have a 2015 permission for new houses on land that needed remediating. The developer built the scheme and sold several properties without agreement with the PLO or discharging any pre-commencement conditions one of which required them to assess land contamination and then remediate. In 2020 they applied for discharge and their application was declined. Since then we have had 102 requests for further consideration.

Last year it did move one and the developers consultant tested the [not so] new gardens and they have recommended that remediation is undertaken to prevent exposure to contamination (the report has not yet been submitted, but we have talked on the phone). The residents have obviously been living there for some of this time. As such our recommendation has been that this scheme should require a new or re-application for residential use. The planning agent wishes to rephrase the original 2015 conditions so that they are no longer prior-to-commencement or occupation and so allow the original conditions to be discharged retrospectively despite having failed to comply with them. The conditions come from DCLGs Model Conditions that they instructed LPAs to use, and they are intentionally prior-to-commencement to avoid situations like this occuring, with the permission itself being lost if they are breached. I must also say that, on this site, unless their testing has found some surprising results, we do not anticipate this to be statutory contaminated land and cuaisng harm (we havent seen the data yet) and rather we seek this residential scheme to be remediated under NPPF requirements before discharge occurs. Non-discharge in this instance may even be acceptable, once we see the survey data, as exposure to the garden soils would be on-going. It is however unlikely to require direct action outside of Planning based on what we know of the land before redevelopment occured.

We have suggested that a new application be made and that it be accompanied by the risk assessment so that we can see it, and the intended remedial scheme. 

There is pressure from the length of time we are taking to confirm discharge and find another way forward, and replying to those various requests. We want to achieve remediation of the site and closure on this scheme. as not least these are now people's homes, but are struggling to find a way forward under the planning system that respects the original conditions that a person on the Clapham omnibus would consider appropriate.

My question is therefore what other options are available within the planning system for when prior-to-commencement conditions have not been complied with.  

richard white, modified 3 Months ago.

RE: Options when prior-to-commencement conditions are not discharged

Advocate Posts: 218 Join Date: 26/11/18 Recent Posts

This probably won't be helpful but there probably is no right answer is there. It sounds as if at the planning stage the LPA considered that remediation was necessary as a matter of principle before allowing development of the site, but then the site has been developed in breach of this requirement. It seems highly unlikely to me that a site can be effectively remediated post-construction - perhaps the gardens and open spaces can be addressed but what about any contamination within the footprint of the buildings?

If I'm wrong and there is an acceptable technical solution to remediating this site post-construction then perhaps this could be secured through a further permission of some sort - but if the site is now occupied - and assuming a new application was in the name of the developer  - then any conditions would need to bite on each and every third party landowner - each house purchaser - any landlords - any housing associations etc. Are there communal areas with a management company? Have any roads been adopted? How would post construction remediation impact on tree planting schemes and SuDS? The potential complications are boggling.

If I'm right that post-construction remediation is a false dream and that the LPA view at the time was that remediation was at the heart of the permission  - i.e. that permission would have been unnacceptable in principle without remediation - then it is possible that the entire development is unauthorised and should face demolition - similar to this case in Greenwich    

The LPA could now decide that remediation is unnecessary but that seems unlikely and somewhat foolhardy unless there is new scientific data disproving the previous data about the need for remediation in the first place.

Jeff Downing, modified 3 Months ago.

RE: Options when prior-to-commencement conditions are not discharged

New Member Posts: 5 Join Date: 16/08/19 Recent Posts

Thanks for the ideas. useful, I'll look into several. There is definitely no right answer.

It's the new data that the applicant's consultant has recently collected that suggests remediation is needed. Luckily In this case retrospective remediation should be possible, and so it's more how to process this correctly in Planning terms to achieve the remediation, without condoning the site usage that has been happening all this time.

The original data was incomplete and the Planning Officers letter was very clear, 'demolition only' - to go no further until the rest of the testing had been carried out and remediation agreed. The whole development was subsequently found built.

There is likely to be an acceptable technical solution on this site even now after several years. The consultant says they have bottomed out vapour risk, and remediation in garden areas only is potentially agreeable (assuming we agree with their survey as they won't submit it to Planning until a way forward is agreed about discharge). It’s the problems with third parties now owning parts of the land, and that residents have already been using the land for these past few years, and so exposure to anything in the ground has been on-going during that time. The intentions of the conditions, to avoid exposures by end-users, have not been met.

The LPA could decide that remediation is unnecessary, but when the applicant's own consultant says they've tested and suggest remediation is needed, I doubt LPA will do that.

We are suggesting that remediation should be secured through a new application for residential use, with that application supported with risk assessment, and the intended remedial scheme, as similar as possible to the correct approach. However, the Planning Agent wanted to change the original conditions to accept retrospective submission. We would have also accepted this approach if it had just recently happened, but it's now years after occupation starts. I think realistically planning enforcement may be ruled out by the timescales and that properties have been sold, as the Notice would be served on the developer and ask them to undertake works on land that is not their own, and so not under their control. It risks forcing the council to investigate directly as we have gardens that and a consultant suggesting remediation is required.