keeping your planning permission alive
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 ("extant") and commenced legally?
MDP explain some of the things to look out for and how to avoid costly resubmissions or stressfull moments.
Lawful commencement of development
All planning permissions are granted subject to being started within a set period of time, this is in the Regulations. The time frame can vary so it is important to read your Decsion 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 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.
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 can today mean that undertaking only minor works can be sufficient to commence a planning permission. However, a very common mistake made is to not have dealt with formally ("discharged") 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 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 they have been discharged, in particular conditions "precedent".
According to the longstanding general principle commonly referred to as the Whitley principle, development started when any "conditions precedent" remain outstanding cannot be taken as lawfully commencing development.
But this principle needs to be considered in the conext 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 imagine two conditions. Condition A required a full surface water drainage strategy to be submitted and approved to the Council prior to commencemtn and a second condition ("b") required the details of a velux window blind control system to be approved. The former would be a Condition Prescedent whilst the latter would not. This is because without a satifcatory drainage plan, the devleopment would have otherwise been refused whereas the details of the Velux window are more minor in nature; ie they do not "go to the heart" of the permission.
As Justice Woolfe rightly points out; it doesnt matter a great deal about when during the lifecycle of the project the Velux window details were approved.
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 discoering that the whole permission.
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. Please get in touch for more details.
MDP explain some of the things to look out for and how to avoid costly resubmissions or stressfull moments.
Lawful commencement of development
All planning permissions are granted subject to being started within a set period of time, this is in the Regulations. The time frame can vary so it is important to read your Decsion 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 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.
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 can today mean that undertaking only minor works can be sufficient to commence a planning permission. However, a very common mistake made is to not have dealt with formally ("discharged") 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 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 they have been discharged, in particular conditions "precedent".
According to the longstanding general principle commonly referred to as the Whitley principle, development started when any "conditions precedent" remain outstanding cannot be taken as lawfully commencing development.
But this principle needs to be considered in the conext 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 imagine two conditions. Condition A required a full surface water drainage strategy to be submitted and approved to the Council prior to commencemtn and a second condition ("b") required the details of a velux window blind control system to be approved. The former would be a Condition Prescedent whilst the latter would not. This is because without a satifcatory drainage plan, the devleopment would have otherwise been refused whereas the details of the Velux window are more minor in nature; ie they do not "go to the heart" of the permission.
As Justice Woolfe rightly points out; it doesnt matter a great deal about when during the lifecycle of the project the Velux window details were approved.
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 discoering that the whole permission.
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. Please get in touch for more details.