Streamlining planning for onshore wind: Discharging planning conditions

The UK government’s recently published Onshore Wind Taskforce Strategy [1] identifies the need for a much more streamlined and efficient planning system in order to deliver rapid deployment of onshore wind energy. Whilst the strategy focuses on timescales for determinations of applications, one of the key barriers to deployment of onshore wind and other major infrastructure projects is the increasingly long time it is taking for planning conditions to be discharged after permission has been granted.

Overview

Planning permission is rarely granted without conditions, and their use may enable development projects to proceed where it would otherwise have been necessary to refuse planning permission. These conditions, imposed by the planning authority or relevant determining authority, are intended to regulate how the development is carried out and usually include pre-commencement conditions which must be discharged before development can lawfully begin.

The tests for planning conditions – often referred to as the ‘six tests’ – are a set of legal and policy criteria used to ensure that planning conditions are fair, necessary, and enforceable.

The discharge of planning conditions refers to the formal process by which a developer or applicant satisfies the requirements of the condition. It involves submitting evidence or documentation to the planning authority that demonstrates compliance with each specific condition. Once the planning authority is satisfied that the condition has been met, it will issue formal confirmation, typically in the form of a written notice or decision letter.

Timescales for discharging planning conditions

In England and Wales, the statutory timescale for discharging planning conditions is eight weeks. In Scotland and Northern Ireland, there are no statutory timescales, however most planning authorities usually set a similar timescale target. In practice, timescales for discharging conditions can take considerably longer, especially for more complex conditions and conditions that require the determining authority to consult with other bodies. While there is a right of appeal for non-determination if the planning authority takes too long to determine, in nearly all cases the adopted approach is to negotiate with the authority to seek to resolve rather than to appeal.

Although there is no officially published data on timescales for discharging planning conditions, anecdotal evidence suggests determination timescales are increasing. The primary reason for increasing delays is likely due to growing resource constraints for planning authorities and consultees. Whilst, as in England and Wales, planning authorities in Scotland can now formally charge for condition discharge applications, these fees are unlikely to cover processing costs and bring about meaningful improvements to timescales for determination. Instead, the growing number and complexity of planning conditions, combined with the rising volume of applications, is likely to place even greater pressure on the resources of planning authorities and consultees.

Use of standard conditions

If the wording of conditions is unclear or ambiguous, they can be difficult to interpret which can lead to subsequent delays in getting them discharged. For example, developers and planning officers may interpret the same condition differently, leading to disputes or repeated submissions.

The use of standard or model planning conditions can be of great benefit in improving the wording and consistency of conditions. However, standard conditions should not be slavishly adopted and instead must always be carefully reviewed to ensure that they are needed and meet the tests for planning conditions.

In Scotland, the Scottish government has recently published standard conditions to be attached to section 36 consents (electricity generating stations over 50MW). What is novel about this approach is that applicants are now being actively encouraged to submit a tracked changed version, setting out the precise wording of the conditions it considers should apply to its application, should it be approved. Similarly, consultees on the application are also being encouraged to submit a tracked changes version of the conditions proposed by the applicant. The Energy Consents Unit, which manages section 36 consent applications, has also committed to providing an opportunity for applicants to discuss and refine the conditions with the case officer prior to a recommendation on the application being made.

When reviewing and amending the wording of draft planning conditions, one of the key considerations should always be to ensure that the ‘trigger points’ for when information is required to discharge a condition does not unnecessarily delay construction. For example, conditions requiring agreement of an aviation radar mitigation scheme for a wind farm should only require the scheme to be approved prior to any turbines being erected. This would be more appropriate than prohibiting any development until such a scheme has been approved as it would allow some early site mobilisation and construction works to proceed.

How SLR can help

At SLR, we understand the complexities of planning conditions and their risk to delaying project construction and delivery. We can support you in ensuring a more efficient discharge of conditions through all stages of the process including:

• Front loading technical details into the application submission to seek to minimise the number of conditions attached to permissions.
• Preparing draft planning conditions to submit with your application.
• Early and effective dialogue with the planning authority and consultees to review and discuss the wording of draft conditions.
• Where inappropriate or poorly worded conditions have been attached to a permission, submitting applications to vary or remove these conditions.
• Preparing and submitting the information needed to discharge conditions and proactively progressing their determination though ongoing communication with the planning officer and relevant consultees.

References

1. https://www.gov.uk/government/publications/onshore-wind-strategy