Do you have planning permission for a site that you haven’t implemented yet but it’s getting close to the end of the three year period? Do you need to secure the consent but are unable to complete the build out? Or, have you bought a site with permission that you wish to secure, but not necessarily complete, in order to use as a fall back position or to establish an extant consent to form the basis of a revised scheme?
Well, in order to keep your planning permission ‘alive’ beyond its three year implementation period you need to do all of the following:
• Discharge all relevant pre-commencement of development conditions (‘pre-commencement conditions’);
• Make a material start on site; and
• If applicable, submit the relevant CIL payment notifications and pay the first instalment.
Discharge of Pre-Commencement Conditions:
Pre-commencement conditions should be dealt with well in advance of the permission expiry date. This must be done through a formal discharge of condition application process, which is subject to an 8 week determination period, although some conditions can be dealt with in 6 weeks if not environmentally sensitive (conversely, this timescale can be extended if further information is required). Be aware that you are entitled to get a refund of the application fee if the Council does not deal with this within 12 weeks, however this may be a moot point if it’s you who have delayed the submission of further information.
Its arguable that pre-commencement conditions do not necessarily need to be discharged before a permission expires but that the discharge applications only need to be running. Be aware that this is a high risk strategy, particularly if the Council has an issue with the information submitted and refuses to discharge them. Plus, it leaves you with no time to implement a permission through a material start on site.
There is also a legal argument that you really only need to worry about those pre-commencement conditions that are absolutely critical to the commencement of development and which go to the heart of a planning permission. Again though, relying on this is a risky strategy.
Making a Material Start:
Following the discharge of the relevant conditions and the pursuit of any necessary investigative works, you must make a material start on site and obtain the Council’s agreement in writing that this has been done.
In accordance with Section 56(4) of the Town and Country Planning Act 1990, in order to commence development you need to carry out a material operation in association with the planning permission. There are five elements which constitute a material operation, comprising:
(A) Any construction work to erect a building;
(AA) Any demolition of the building;
(B) The digging of a trench to contain the foundations or part of the foundations of a building;
(C) The laying of underground mains or pipes to the foundations;
(D) Any works involved with the laying out or construction of a road or part of a road; and
(E) A material change in the use of the site.
Of these five, the most relevant are probably the demolition of a building (if demolition forms part of the permission), the digging of part of the foundation trenches and any construction work.
Whilst there is no specific reference to how much work is necessary to actually satisfy A, AA or B, it is arguable that the demolition of a building and a stretch of foundation trench along part of a boundary (or at a junction of two boundaries) would be sufficient to demonstrate that a material start has been made. It doesn’t have to be a particularly long section, probably no less than 3m, but it needs to be dug to the correct depth and aligned to the approved plans.
It would also be sensible to record any works undertaken with photos and plans that can be verified with statements and/or any contracts signed for these works. This information can then be formally presented to the Council asserting that a material start has been made in conjunction with the discharge of the relevant conditions.
CIL Payment Notification:
Finally, be mindful that the commencement of development will trigger the payment of a first CIL installment, if this is relevant, and it is vital that the following information is submitted to the Council before any works start on site:
• CIL Form 1 Assumption of Liability Notice – this confirms who is responsible for payment; and
• CIL Form 6 Commencement Notice – this confirms the date when you will make a start on site.
So, whilst securing an expiring consent might be the least of your concerns with a stalled or stagnant site, it is almost always worth keeping a permission alive to maximise its future development potential. Even if you only do the bare minimum – take the time to discharge the critical pre-commencement conditions, carry out some tangible site works that demonstrate an intent to develop, and finally document the process transparently with the Council – these essential measures should pay dividends in ensuring your consent remains very much alive and relevant.
Hope this has been useful. If you want a more in-depth read of the legalities of keeping a consent alive, we’d highly recommend Polly Reynolds (Temple Bright Chambers) blog from May 2016, check it out here: blog.templebright.com/2016/05/stayin-alive-keeping-that-planning.html