Fees for condition compliance requests - Public forum - Planning Advisory Service (PAS)

Fees payable to discharge conditions. This is clarified in the yet to be published Circular an extract of which accompanied the DCLG letter dated 4th April to all Chief Plannnig Officers in England which was sent electronically and should be with your Head of Planning -see attached

This debate has been running in Kent for a few days. Kim Bennet of Canterbury had the following information. I have spoken to Alan Cornock at CLG . He seems to be responsible for this and has taken a large number of calls on the fee for condition issue. I suggested that is because it may not have been clear! He confirmed following: 1. Legislation IS intended to deal with formal written decisions from authority where applicants seek to DISCHARGE conditions. i.e some authorities will clear materials verbally so you couldnt charge then. However if you reply in writing to confirm a condition is discharged then you can. 2. Only one fee can be charged if multiple conditions are submitted at the same time. If they are submitted at different times then a fresh fee can be charged each time 3. fee is £85 or £25 in case of dwellings or development in curtilage of dwellings 4. Fee has to be returned if no decision within 12 weeks - need to note that one!! 5. an additional fee can be charged for a revised detail. I assume this means that either a detail is changed, or alternatively the detail has been refused and a fresh submission has been made The Circular is still being finalised. I suggested to Alan that it might be a good idea if he looked at the wording again to clarify the above and he agreed

Sorry, having read the Circular I am still none the wiser and would be pleased if anyone can offer clarification. a) Where is a 'condition compliance request' defined? b) Where is a 'condition discharge' defined? I am not sure what they mean. To my mind 'details submitted pursuant to conditions' are either APPROVED or REFUSED not discharged. The dictionary suggests that 'discharge' means to 'release or allow to go' This is the subject of a separate procedure under S.73 of the Act for the development of land 'without complying with conditions subject to which a previous planning permission was granted'. As far as I am aware, this is the only legal route to allow conditions to go. Furthemore, many conditions have ongoing requirements, so for example the submission and approval of a material sample is not in itself compliance with the condition where such condition also requires completion of the development in accordance with the details approved. Paragraph 124 of Circular 04/2008 states that the fee is payable 'where written confirmation is required that one or more conditions imposed on the same permission have been complied with'. Surely this is quite different from an 'application for approval of details pursuant to a planning condition'? I had therefore concluded that the fees related to requests to confirm that conditions had been complied with following completion of a development. Urgent clarification still needed from DCLG I feel as the fees are now in place.

I agree the wording is misleading. The footnote to this section of the circular has been added since Monday. Having spoken to dclg they are in no doubt that a fee is required for a submission under Article 21 of the procedure order and this means that if someone wants to gain approval of for example the materials for the erection of a dwelling and the submission is required by condition then the request if made in writing will have to be accompanied by a fee. A subsequent request to seek confirmation that the house has been built in the approved materials would also attract a fee.

Thank you Martin .... now I see the Emperor’s new clothes! I further note that DCLG are also advising that: “The fee must be paid when the request is made, and cannot be required retrospectively”. I have a number of requests for approval of details with no fee since 6 April and am I therefore unable to request a fee for them? So what is there to compel any applicant to submit a fee? There is further advice that “Local planning departments may choose to ‘clear’ some conditions informally without seeking the new fee, where they find it appropriate and more efficient to do so. It will be for the developer to decide whether any approval provided will suffice, or whether he or she should pay the new fee and request a more formal statement of compliance”. I must say, I have never heard of an authority that uses conditions that do not require details to be ‘approved in writing’. So what is the difference between an ‘informal’ approval, a ‘written approval’ and what is a ‘more formal statement of compliance’? I am puzzled why it is for the developer to decide what he or she wants. Presumably developers will start asking for informal clearance of conditions with no fee. In the lead judgment in the case of Henry Boot, the Court of Appeal Keene LJ concluded that the scope for waiver by non-statutory means of the need to comply with a condition must be extremely limited.

Did you receive any clarification on points raised and are your Authorities charging?

I realise this discussion was some time ago but I have another query. If an authority refuses a submission to comply with conditions does the applicant have the right to appeal? Any help on this would be appreciated.

Yes!! The answer may be found in the main Act at s.78 (1)(b). Dean

I know i'm opening up an old wound but, I have spent the afternoon having a bit of a discussion on this one.......... My authority has been charging solictors and enquirants the £85 and £25 fees when seeking confirmation that old and historic applications (pre 2008) have had their conditions approved. This is used mainly by soliictors selling houses. Is this a correct interpretation of what is now part 30 of the DMP? or should we not be charging anything? I would welcome your views on what other people do.