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27th January 2022

Planning Consent about to expire? – Have you lawfully implemented?


27th January 2022

Planning Consent about to expire? – Have you lawfully implemented?

Since 2009 the duration of detailed planning permissions (i.e. the period after which they lapse if not implemented) has been three years rather than five. In the case of an outline planning permission, an application for approval of all reserved matters must have been made within three years of the date of the consent.  The development must then have been commenced no later than two years from the date of approval of the last of the reserved matters.

It is important to note however, that these timescales are the statutory default position and local authorities do have the power to extend or reduce these timescales through the use of planning conditions at the time of granting consent, in which case this will be clearly indicated on the Decision Notice. However, since 2013, it is no longer possible to extend the time until a planning permission expires and the only remaining available options are to implement the existing permission or to re-apply for planning permission.

A planning permission will invariably enhance the value of a property and whilst an applicant may not wish to build out the consented scheme, they’re quite likely to want to preserve the value which it represents. Therefore, seeking to lawfully implement the permission within the three years’ timeframe is generally the best option. This can be achieved by carrying out some initial construction work as long as this amounts to a “material operation”.

‘Material operations’ are specific actions that demonstrate that construction work has commenced, often referred to as the ‘commencement of development’. Helpfully, ‘material operations’ are explicitly listed within Section 56 of the amended version of the Town and Country Planning Act 1990:

  • Any work of construction in the course of the erection of a building
  • Any work of demolition of a building
  • The digging of a trench which is to contain the foundations, or part of the foundations, of a building
  • The laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench
  • Any operation in the course of laying out or constructing a road or part of a road
  • Any change in the use of any land which constitutes material development

Any works of implementation will, however, only be effective to preserve the permission where any pre-commencement conditions have been complied with.

A condition within a planning permission will be a pre implementation condition where:

  • the commencement of the development is conditional on that condition being satisfied; and
  • the condition goes to the heart of the planning permission.

Failure to comply with such a condition in advance of any on-site works (which would otherwise amount to a material operation), will prevent the lawful implementation of the permission which may consequently lapse.

This position was restated by the Court of Appeal in the recent case of Greyfort Properties –v- Secretary of State for Communities and Local Government. This applied the principles laid down in a long list of other similar cases where developers had sought to implement planning permissions very shortly before the date on which they would otherwise have expired.

The case serves as a reminder of the importance of scrutinising planning conditions as soon as they’re received from the local planning authority. This process should start before the grant of planning permission as Officers should now share proposed draft conditions with applicants for review. Any conditions which are identified as being pre-commencement conditions will need to be the subject of an application to ‘discharge’ that condition. This application may itself take some months to process and so a timely application to discharge any pre-commencement conditions will ensure that the planning permission can be lawfully implemented before the date on which it would otherwise expire.

If you wish to discuss any of the issues raised in this blog please contact me.

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