Planning Permission and commencement of development
Vicky McDonald, an Associate in our Real Estate group, answers the question of what counts as ‘commencement of development’ and why it matters.
Planning permissions are granted subject to a condition that they must be implemented within a set period of time, usually three years from the date on which planning permission is granted. In the case of outline planning permission, reserved matters must be submitted for approval within 3 years of the grant of the outline permission and the works must be begun within 2 years of the final approval of the last reserved matters. Please note, however, that these time periods can vary, so please pay careful regard to what your planning permission actually says.
Failure to implement a planning permission within the required time limit leads to the planning permission lapsing. In that case a further planning application would need to be made to the local planning authority. A fresh application carries with it a risk that the new permission could be granted subject to different and more onerous planning conditions. In the intervening period the local planning authority may also have updated its local plan, or there may now be a neighbourhood plan, which can mean that any fresh application may be refused owing to a change in the relevant policies.
What constitutes “commencement”?
In order to lawfully ‘commence’ development it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. This says that “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 practice, very minor works are usually sufficient to commence development. This could be as simple as putting in footings or even just pegging-out a roadway. Caution should be had though, as any works done must reflect what was actually permitted by the planning permission. This means crucially that any pre-commencement planning conditions must be complied with before works commence on site. Otherwise any works done to implement in accordance with section 56(4) may not be lawful and may then be subject to challenge by the local authority.
If the planning permission contains ‘pre commencement’ conditions which are not likely to be complied with before the date on which the planning permission would (but for implementation) expire, then in the alternative an application could instead be made to vary the planning condition. This could be dealt with by way of a s.96a application (an application for a non-material amendment) to vary the wording of the relevant conditions to perhaps delay the date for compliance.
The CIL risk
Commencing development has become an even hotter topic in light of the Community Infrastructure Levy (“CIL”) because commencement of development triggers the requirement to pay any CIL. It is important to note that the CIL regulations also provide that before commencing development, a valid ‘Commencement Notice’ must be submitted. Crucially, such a notice must be in the form required by the regulations and so a simple email to the local authority will not suffice. Historically, failure to serve such a notice prior to commencement would have also resulted in any reliefs or exemptions from CIL being lost: this is no longer the case, but new surcharges do apply.
S.106 Planning Agreement risk
In addition to CIL, if any s.106 planning agreement was entered into in connection with the relevant planning permission, then it is likely that obligations in it (which may include the payment of certain sums) are triggered by the commencement of development. Often, however, s.106 agreements do provide other tests of what amounts to ‘commencement of development’ for that purpose, and so whilst you might be able to commence development to keep a planning permission alive by doing minimal work, you might not have yet triggered any of the obligations in the s.106. In such a case it is key to ensure that the terms of the planning permission, any s.106 agreement and the impact of CIL are all carefully considered with the benefit of legal advice.
So, how do you prove that commencement has taken place and that the planning permission has been lawfully implemented and so kept alive? Here are a few suggestions:
- Keep evidence – this could be time stamped photographs, correspondence from contractors or engineers who have actually done the work etc.
- Obtain a comfort letter from the local authority
- Seek legal advice
- Apply for a certificate of lawfulness from the local authority