Consultation_ legislating to prohibit pre-commencement conditions

Whilst the title above reflects the main thrust of this public consultation it has actually been published under the title of “Improving the use of planning conditions”. Given that there is always the potential for improvement, just look at what Dyson has done for Vacuum Cleaners and Hand Dryers, this title has a reassuring and comforting feeling that “things can only get better.” However, as most land contamination matters are dealt with by pre-commencement conditions will the Government’s proposed changes “to legislate to prohibit pre-commencement conditions from being imposed unless the applicant has first agreed them” work for our industry?

Recent discussions on JISC Mail have suggested that point 3 of the consultation could be read as potentially safeguarding traditional land contamination pre-commencement conditions.  Although point 3 does not specifically highlight land contamination, as an important matter for which protection should be maintained, unlike heritage, the natural environment, green spaces and measures to mitigate the risk of flooding, it does state that “these proposals will not restrict the ability of local planning authorities to seek to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework (NPPF).”

Since section 11 on “conserving and enhancing the natural environment” paragraph 109 of the NPPF includes as a requirement for the planning system to enhance the natural environment through “remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land” this perhaps is a fair interpretation.  However, later in the consultation document, one of the tests for a planning condition being unnecessary, is whether it duplicates a requirement for compliance with other regulatory requirements – e.g. Building Regulations.

The Building Regulations do require the consideration and mitigation of the risks contaminants may pose to buildings and people.  Consequently, there may be times when, depending on site setting, there may be a compliance duplication but given all the discussions over competence regarding land contamination are Building Inspectors competent (trained and experienced) in the assessment of land contamination? From experience probably not-so if you have a view on whether the Government’s proposals will make the improvements suggested or not, why do n’t you have your say.  The Consultation document can be found at and the consultation ends at 12:00PM on Wednesday 2 November 2016.