You’ve managed to secure permission or are buying land with planning permission already granted. But what are the important things to be aware of to ensure the consent is kept alive known as "extant" and commenced legally?
Here, we explain some of the variables to look out for and how to avoid costly resubmissions or stressful deadlines.
Planning Permission is usually granted for a 3-year time scale, it's important to be aware of what you must do and complete before the end of this period in order to keep Planning Permission 'alive'. You should also document commencement so that you can demonstrate the permission has been lawfully handled if required.
Lawful commencement of development
All planning permissions are granted subject to being started within a set period of time, this is in the Regulations (section 91 of the Town and Country Planning Act 1990). The time frame can vary so it is important to read your Decision Notice carefully. The time frame is usually three years from the date the permission was granted.
In the case of outline planning permission, Reserved Matters must be submitted for approval within three years of the grant of the outline permission and the works must be begun within two further years of the final approval of the last Reserved Matters.
But what constitutes Commencement?
Commencing development means undertaking some works on site to ‘begin’ a planning permission and thereby keeping it alive indefinitely.
According to the Town and Country Planning Act 1990, “development is taken to be begun on the earliest date on which a material operation is carried out.” A 'material operation' can include any works of construction, demolition, digging foundations, laying out or constructing a road and a material change in the use of the land.
In reality, and over time, this "threshold" has become lower and lower, and today can mean that undertaking only minor works may be sufficient to commence a planning permission. However, a common mistake made is to not have "discharged" (dealt with formally) any pre-commencement conditions pursuant to the permission itself before works commence on site. Naturally any commencement must also reflect what has actually been approved by the planning permission.
Discharging conditions to allow for ‘Commencement’
So, how do you prove that commencement has taken place and that the planning permission has been lawfully implemented, and so, is kept alive?
In some cases, simply keeping time stamped photographs or correspondence from contractors or engineers is not enough as often planning permissions have conditions attached to them which mean that work cannot be started before certain conditions have been discharged, in particular conditions "precedent".
Conditions Precedent
According to the longstanding principle commonly referred to as the Whitley principle, it is unlikely that development has commenced "lawfully" if development has commenced where any "conditions precedent" remain outstanding.
But this principle also needs to be considered in the context of the 2005 landmark case known as “Hart Aggregates”, (R (on the application of Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin)).
In making closing comments, Justice Woolf said in regard to such conditions;
“If the approval which covered the operations had been given after the operations but prior to the expiry of the time limit it would be technical in the extreme to treat what had gone before as not complying with the time limit. As long as the approval had been obtained and the operations complied with that approval, it would have been of no practical significance whatsoever which had come first, the approval or the operations, from a planning point of view.”
This effectively means that the Whitley principle does not apply to all conditions and a distinction is drawn in Law between conditions requiring something to be done “before development starts” and those which are true conditions precedent going to “the heart of the permission”.
This may sound confusing so let us imagine two conditions. Condition 'A' required a full surface water drainage strategy to be submitted and approved by the Council prior to Commencement and a second condition ('B') required the details of a Velux window blind control system to be approved. The former ('B') would be a Condition Precedent whilst the latter ('A') would not. This is because without a satisfactory drainage plan, the development would have otherwise been refused whereas the details of the Velux window are more minor in nature; i.e. they do not "go to the heart" of the permission.
As Justice Woolfe rightly points out; it doesn't matter a great deal about when during the lifecycle of the project the Velux window details were approved. This case law is something many LPA case officers are not familiar with.
Whether or not a condition is a true condition precedent requires expert knowledge and consideration, and it is important to seek professional advice as to what the conditions attached to a planning permission entail. Seeking advice early can help avoid any pitfalls and potentially appeals or resubmissions or worse discovering that the whole permission.
Finally, make sure you have sought and secured CIL exemption if this applies. We can help you work through any planning conditions, ensuring they have been fully discharged so that you are able to keep planning permissions alive and commence lawfully even if you not had to seek professional advice up to this point. Contact Us for more details.