Once you have managed to secure permission or you have bought land with planning permission already granted. There are important things to be aware of to ensure the consent is kept alive, known as "extant", and that development is commenced legally.
Here, we explain some of the variables to look out for and how to avoid costly resubmissions or stressful deadlines.
How long does planning permission last?
Planning Permission is usually valid for a 3-years, it is important to be aware of what you must do and complete before the end of this period in order to keep Planning Permission extant. You should also document any onsite commencement so that you can demonstrate the permission is lawfully underway if required.
Lawful commencement of development
All planning permissions are granted subject to development commencing within a set period of time, this is in the Regulations (section 91 of the Town and Country Planning Act 1990). While commencement is usually defined as within 3 three years from the date the permission was granted it can vary so it is important to read your Decision Notice carefully.
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 begin 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 ‘commence’ a planning permission and thereby keeping it extant 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.
How do I prove commencement has taken place?
In some cases, simply keeping time stamped photographs or correspondence from contractors or engineers is enough to prove work has commenced and development is underway.
- Building control inspections
- CIL form declarations
- On-site deliveries such as welfare units and skips
- Google earth images
- Witness statements (from contractors and engineers)
- Timestamped photographs
- A certificate of lawfulness can be submitted to the LPA to formally recognise commencement; this can be useful if you are selling a site onwards
Discharging conditions to allow for ‘Commencement’
In most cases, 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 his 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 ('A') would be a Condition Precedent whilst the latter ('B') 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, including after the 3 yar period. This case law is something some LPA case officers are not familiar with.
This does not mean one ought to intentionally withhold such information but it assists in identifying priorities.
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. For example are more bat surveys needed (these can only be carried out at certain times of the year). It is advisable to work backwards from your expiry date allowing plenty of time for reports to be drafted checked, submitted and approved. Seeking advice early can help avoid any pitfalls and potentially appeals or resubmissions or worse discovering that the whole permission is now null and void.
CIL Liability
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 extant and commence lawfully even if you not had to seek professional advice up to this point.
Contact Us for more details.