Validity and consistency of local authority decisions Q & A DCP Section 6.3

This section considers in what circumstances decisions made by local authorities may be invalidated or restrained because of incorrect administrative procedures or the effect of previous decisions. The circumstances in which a decision may be challenged as invalid because of incomplete or improper planning considerations being used to make a decision` are covered at (4.1) and (4.2). The basic procedural requirements following the submission of a planning application are considered in sequence at (5).

Q & A    6.3/10

Can a planning authority request a developer to change a type of dwelling already approved on plans to assist a neighbouring property to retain its amenity value?

Certainly a planning authority may request such a change, but if there is a valid planning permission  nothing may be done to force the issue short of a modification order which would involve the payment of compensation.  A neighbour adversely affected by an approved house, say by overlooking or overshadowing, could go down the hazardous path of seeking judicial review of the planning permission or alternatively a complaint to the Local Government Ombudsman could be made. However judicial review would normally only be an option if action was taken relatively quickly after the decision was made.

A developer carries out the digging of trenches on site to accommodate foundations for the erection of a dwelling. In my opinion this constitutes commencement of development and the implementation of the planning approval. However, if the trenches are filled in at a later date without any other works having taken place, does this nullify the implementation?

This situation has been the subject of a court decision High Peak Borough Council v Secretary of State for the Environment and Courtdale Developments [1980]. Here, a trench had been dug in commencement of a development and later back-filled with soil. The developer argued that this act had been necessary in order to prevent animals and children falling into the hole. The court held that a particular operation as specified in planning legislation had been carried out, and the relevant section did not say that there should be no intervening act between the digging of the trench and the pouring of concrete therein. The fact that earth which had been taken out of the trench was used to backfill it did not necessarily deprive it of the character of a trench.

The answer to your question is that, using the authority of the High Peak case, the circumstance you cite has left the permission alive. This is a view reinforced by later judgements such as Riordan Communications Ltd v South Bucks District Council [1999] which indicate that lack of intention to complete a development is not part of the test as to whether "material operations" have taken place.

In 1949 planning permission was granted for the rebuilding of three terraced properties which were bombed in the Second World War. Two of the three dwellings were completed but the third was never started and the site forms the side garden to one of them. Can, after so long, the third dwelling still be constructed under the terms of the original permission?

On the face of it I do not think that the lapse of time involved need be a problem provided that the original permission related to details for the three houses as one development, and some works to implement one or both of the two existing houses were begun within the validity of the original planning permission.  After recent court judgements it is established that the section 56 concept of "material operations" applies even if no intention to complete a development can be shown. Although of academic interest, it is of note that the rebuilding of bomb damaged properties was permitted development until as late as 1988.

I have come across a situation where a change of use from A1 to an A3 restaurant was granted in 1990. The change of use did not take place within the statutory time limit and therefore the approval would normally be considered to have lapsed. However, the application included permission for the erection of an extension which was completed within the time limit, although it was never used for restaurant purposes. Has the erection of the extension preserved the A3 permission?

Section 56 of the Town and Country Planning Act 1990 would suggest that once material development has been carried out the whole of a planning permission of which it formed part is thereby saved from the normal expiry provisions. In this case there was a clear material start towards implementation by the construction of the extension, and I can see nothing in law or court judgments to suggest that any change of use associated may be severed from the preserved permission. I am willing to admit that there may be other interpretations of this interesting legal  question and invite contributions from readers.

I have been referred to the "Wednesbury principle" in relation to a planning case. This title apparently derives from a court judgement but I have been unable to find such a case listed in the usual indexes. Do you have any knowledge of this matter?

The reason you may be having trouble in locating this case is that its full title is Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948], and its subject was to do with Sunday licensing of places of entertainment and not town planning. However, it established an important principle widely used in administrative law. In summary this was that the courts may only intervene to find that an authority had acted unreasonably when a decision had taken into account matters that it ought not have, or disregarded matters which it should have. Within that framework the discretion of the executive may not normally be challenged, provided that a decision was not so absurd that no sensible authority could have possibly come to it.

Could you comment on "development begun" with any guidance as to definition, or is judgement a matter for LPA interpretation?

I imagine that you are referring to sections 56 and 91 of the Town and Country Planning Act 1990. The latter provides that a planning permission expires if not begun before the expiry of five years, and the former sets out a series of "material operations" one of which has to be carried out for the development to be deemed to have begun. Detailed definition of these material operations has caused very considerable contention over the years, as if they are accomplished a planning permission is preserved in perpetuity. There is no room here to explore the myriad cases that have touched on this issue, but they are to be found at (6.34). Suffice to say that the thrust of case precedents would suggest that quite vestigial works may keep a permission alive. Local authorities will normally not wish to be fettered by the possibility that old permissions may rear their heads and be implemented many years later, and may argue for a restrictive interpretation of material operations. However, their ability to unilaterally interpret their scope is strictly limited by the right of appeal.

We obtained planning permission to increase the roof height of a building to facilitate its conversion into a dwelling. The architect’s plans that were approved and referred to in the decision notice showed a variation in the ridge height of around 0.5 metres between the measurements of the side elevation and those shown on the front elevation. Can we build to the highest figure of should we take an average figure?

I doubt whether this discrepancy would be considered sufficient for the validity of the permission to be called into question. Of course, the best way to sort out such an ambiguity as you describe is to come to an accommodation with the local planning authority, given that it was partly at fault for not spotting the difference between the two elevations when approving the application. It may well be that the exact height of this roof is not a matter of planning contention, in which case either dimension may be acceptable. If a mutually agreeable solution to this problem were not found, and it came down to the question of which ridge height your clients were legally able to build I think that this would be a matter for the courts to determine. To avoid going down this road your client could go ahead and build to his preferred height and take the risk that the local authority would take enforcement action. At appeal I could envisage an inspector being in some difficulty upholding such a notice.

I would be grateful if you could help me with some planning research that I am currently working on. My question is that if a person is granted planning permission to build 100 houses on some land, will he then be permitted to build only 50 houses? In other words is partial implementation of planning permission permitted? I understand that the answer will depend to a large extent on the conditions attached to the permission. However, on the assumption that there are no conditions , is it a general rule that partial implementation is not unlawful?

In respect of an outline permission for housing, the number of units to be built may be secured by a specific condition or by reference to development descriptions or plans which imply a particular number of units. If in these circumstances a developer changes plan and wishes to build at a lower density, a fresh application will be necessary, which may well not be acceptable to the local planning authority in the light of current advice in PPG3. If there is no condition it may be assumed that the outline relates to the principle of residential development with the number of units being a reserved matter to be determined when detailed plans are submitted. In the case of a detailed planning permission, there is nothing to prevent a developer securing permission for the 100 houses, and only building 50 of them, provided that the 50 to be built conform to the approved layout. It is of note that Circular 11/95 paragraph 61 advises that a condition requiring the whole of a development to be completed should not normally be imposed.

I was interested to read the court judgement reported in Casebook (Planning 18 October 2002 p18) relating to the quashing of a planning permission due to a local authority's failure to take account of a previous appeal dismissal for a similar scheme. Is there any time limit to the relevance of previous permissions?

This topic is dealt with at (6.353) where cases show that there is no set time threshold when a previous decision ceases to have any relevance as a  material consideration. All depends on whether there have been changed planning circumstances since the original decision, thereby creating a fresh decision making situation. In some situations, as in the court case cited, there may well have been no such changed circumstances over a considerable number of years.

A green belt property is one of eight in a row outside any settlement boundary. In the 1930s when most of the other properties were built an access drive, septic tank and foundations were laid for a detached house on what has since been used as the side garden of the property. Due to the war work stopped and the foundations were covered over. Recent excavations reveal that they remain intact and it appears that the septic tank is linked to others in this row and is maintained.  What weight can be attached to the fact that an approved start was made to this house in the 1930s and could it be argued that there has been no abandonment or extinguishment of intended residential use of this land?

If this situation had occurred in relation to a building permitted under modern town planning legislation the works you describe would fall within the categories of "material operations" set out at sec. 56(4) of the 1990 Act and may provide rights to complete the house  in accordance with the original permission. This would be the case  no matter how much time had elapsed. I do not know whether this would apply in the case of a dwelling approved under the 1932 Act regime, although it seems that the 1947 Act gave a deemed permission for "unfinished buildings" existing at the appointed day. I do not believe that there are any other rights which could be invoked to overcome  the current policy objection to the development of this plot. Clearly some legal advice is necessary to establish the position.

Response

A planning appeal decision from March 2002 is relevant to this question. Here the situation was that a scheme for six houses had been permitted under the 1932 Planning Act. Three of the houses were erected and an LDC was sought for the other three. An inspector was satisfied that the houses built were probably in compliance with conditions requiring the approval of detailed plans. He considered that the 1947 Act permitted the completion of approved development commenced  before the appointed day, and cited Marks and Spencer v Ltd v London County Council [1953]. This case demonstrated that if pre-war development had commenced  in much the same terms as provided for in the present sec.56 (4) definition of material operations, then it could be completed.  Therefore the inspector concluded that the development of the six houses had been commenced by the erection of three of them. There was no evidence of the permission being abandoned or extinguished by the erection of a different development, and therefore the inspector granted the LDC applied for.

A development involving the conversion and extension of buildings to form flats was given permission in 1981 and has been implemented with the exception of an extension to form an extra floor, which it is now proposed to construct. The situation is complicated by the fact that permission was given in 1985 for a revised scheme for one of the other original blocks. Would an LDC request be successful?

A development once commenced may be completed at any time using sec. 56 of the 1990 Act. I do not think that the fact that another part of the scheme comprised in the original permission has legitimately been built in a different way takes away from this right provided that the completion works to provide the extra floor can be still be implemented as originally intended.

I am dealing with a haulage site with an extant planning permission for its total redevelopment for housing. The owner’s previous intention to relocate his haulage business has fallen through and he now wishes to continue the haulage use of the site. However, he also wishes to keep his residential permission alive, by starting work on a single house. Can the two uses co-exist, or by commencing development pursuant to the housing permission, has a change of use taken place, rendering the site’s use for haulage purposes unlawful?

It is necessary to consider the somewhat difficult concept of whether the proposed works would create a ‘new chapter’ in the planning history of the site. The courts have held that this can happen where there has been a radical change in the nature of the buildings or uses on the site, such that it could be considered as a fresh start in its character. In these circumstances the occupier cannot revert to any previous existing use rights. Much may depend therefore on the size and nature of the haulage site, and the impact that works to commence the approved development would have on its character. However, if these are the minimum necessary, such as the digging of trenches etc, I am inclined to think that it would be possible to preserve the permission while continuing the existing lawful use. What do readers think?

My authority has granted planning permission for a domestic extension but the site edged red on the approved plan covers a larger area than the curtilage shown in previous planning history.  No specific reference was made in the application to a change of use of the land.  Does this mean that the authority has authorised the enlargement of the residential curtilage by default?

The general principle is that the effect of granting a planning permission may be construed from the decision notice itself, without reference to the application. However, the courts have held that that are three exceptions. These are where: the application has been specifically incorporated by reference; the wording of a permission is ambiguous; or in certain circumstances where the validity of the permission is challenged.

In your case, some comfort might be had from Staffordshire Moorlands D.C. v Cartwright & another 1991 to support the view that the extension of the residential curtilage did not form part of the application’s ‘evidential matrix’. Thus, if this matter was not referred to in either the description of the proposed development in the decision notice or in the application itself, I think you could argue that it falls outside the scope of the permission.

Response

There is a further factor that the planning authority could use to show that an extension of the residential curtilage had not been approved. The application fee for this would have been £220, but presumably only the £110 fee for the domestic extension was paid.

I am told that lobbying Members to support my client’s application is now frowned upon. Is there any national guidance on this matter or any advice you can give?

Following the Local Government Act 2000, which introduced a new ethical framework to local government, many authorities have adopted a Members’ code of practice on planning procedures, based on a model produced by the Association of Council Secretaries and Solicitors or on similar guidance issued by the Local Government Association. These include some basic principles on lobbying which seek to ensure that Members maintain their impartiality and do not appear to fetter their discretion in the decision-making process. Codes may discourage such approaches in favour of any public speaking system or Members from expressing a view before an application is formally considered, unless it is made clear that it is a personal opinion that does not bind the council. Or they may encourage information to be shared with or put in writing to officers instead.

Lobbying Members is a sensitive matter that requires great care, not least because it could antagonise officers involved in the application or appear to undermine delicate negotiations. In my experience, Members do not normally respond well to threats, such as suggestions that any refusal will be appealed. Over-lobbying is counterproductive, so it needs to be restrained and to the point. It is important to stress the benefits of the proposed development and in the case of large-scale controversial proposals to consider the use of public relations consultants.

I have two cases where permission has been granted but there are discrepancies in the approved plans. The first involves a barn conversion where windows on the floor plans are shown as wider than those on the elevations, and these plans are preferred by my client. In the second, one elevation of an industrial building is shown with an eaves height 0.5m higher than on the other elevation. The building has been constructed to this increased height and the planning authority has declared its intention to take enforcement action. Are you aware of any guidance or case law that deals with such discrepancies?

I am surprised that a discrepancy of just 0.5m in height of what must presumably be a relatively large utilitarian building is sufficient to have a discernible effect and to justify enforcement action, and the prospects for a successful appeal would appear good. This is especially so given that the building conforms to one of the approved elevations and this discrepancy was not picked up by the planning authority. Although I am not aware of relevant guidance or precedent on discrepancies between plans, advice on minor amendments may be helpful. Circular 31/92 says that the planning authority will have to decide whether a proposed variation is "significant enough" to require a fresh planning application. Some departures from approved plans may be considered not to be development either because they are de minimis or because they have no material effect on the external appearance of the building, and thus not development by reason of sec.55(2)(a) of the 1990 Act.

Substantial errors in application plans may invalidate a permission, while a failure on the part of a planning authority to spot discrepancies has resulted in findings of maladministration in certain circumstances. It would be prudent to discuss the barn conversion with the planning authority with a view to reaching an agreement. However, in the apparent absence of any authority on the matter, whether the floor plans or the elevations should legally prevail will ultimately be for the courts to decide.

Following permission for a development, a small section of trench was dug for the foundations and filled with concrete but no further work has been carried for nine years. Two conditions requiring details to be submitted prior to work starting were not discharged and still remain outstanding. The developer claims that the permission is extant because the development has already been commenced. But as the works carried out were in breach of the two conditions, is he right?

The leading case on this issue is F.G.Whitley and Sons v SoS for Wales [1992]. The general principle is that works undertaken in breach of a condition precedent are unlawful. They cannot therefore constitute a start to development for the purposes of sec 56 of the Town and Country Planning Act 1990 and keep the permission alive. However, the courts have ruled that there are four exceptions. These are where:

•    the developer has done everything practicable to meet the condition;

•    approval has subsequently been given so that unauthorised work carried out within the time limits was made lawful;

•    the planning authority has agreed that development could start without complying with the relevant conditions; or

•    the condition had been complied with but the procedural formalities, such as written notification of the planning authority’s approval, had not been completed before work started.

Thus unless one of these exceptions applies in this case, the development will be unlawful.

A permission was granted in 1985 subject to a condition for development to start within five years. A footbridge was included in the application and was built within the time limit. But the planning authority argues that it is not a "specified operation" for the purposes of Sec. 43 of the Town and Country Planning Act 1971, which applied at the time. It claims that the development has not been implemented and the permission has lapsed. Is this the case?

Under the 1971 Act development was taken to have begun as soon as any "specified operation" comprised in the development started to be carried out. Sec. 43(2) defined such operations as including any activity in the course of laying out or constructing a road or part of a road or construction work on any building. I am not aware of the authority's reasons for disputing this matter. However, in my view the construction of a footbridge is a specified operation sufficient to keep the permission alive.

Following a grant of permission, development is clearly unauthorised if a developer starts to construct a building without discharging any pre-condition. Does this also mean that the developer has forfeited his permission? What is the position where a developer, on realising that a scheme is unauthorised, demolishes the building works, restores the land to its original condition and then seeks to discharge pre-conditions?

The general principle is that works carried out in breach of a pre-condition are unlawful. They cannot constitute a start to development for the purposes of Sec. 56 of the Town and Country Planning Act 1990 and keep the permission alive beyond the prescribed time limit. However, the courts have ruled that there are four exceptions:

•    The developer has done everything practicable to meet the condition.

•    Approval has subsequently been given so that unauthorised work carried out within the time limits was made lawful.

•    The authority has agreed that development could start without complying with the relevant conditions.

•    The condition had been complied with but the procedural formalities, such as written notification of the authority's approval, had not been completed before work started.

In this case, if the unauthorised works are demolished and the developer seeks to discharge the pre-conditions before the relevant time limit has expired, this will save the permission.

An intrusive 2m high and 150m long fence has been erected in a conservation area near the curtilage of a significant listed building. I consider that the local authority should have served an Article 4 Direction removing permitted development rights to put up fencing in the conservation area. It was first notified of the fence when only a few posts were in the ground. In defence of its decision not to serve a direction the authority argues that ‘once work on the fence had commenced, the issuing of an Article 4 Direction would not have prevented further work on the fencing in question or any further works relating to this fencing’. On what basis can the authority’s interpretation be correct? MS.

The local authority’s position is right. Once a deemed permission granted by the General Permitted Development Order has been implemented by the commencement of work, it is regarded in the same way as any conventional express approval for development. It may be lawfully completed, assuming the whole process is seen to be part of a continuing operation. Therefore, service of an Article 4 Direction has no inhibiting effect on permitted development operations already underway at the time. I am in no doubt that even the setting of just a few posts would be regarded as commencement of the fence you describe. GH.

My client purchased land with planning permission for two bungalows. Due to a discrepancy made by the original architect, the position of the surrounding dwellings was found to be wrong once the dwellings were substantially built. My client was told to halt work and submit an application with the surrounding property in the correct position. The planning officer recommended approval, but members called it to committee at the last minute and refused it. Over a period of six months the actions of members amounted to gross unreasonable behaviour in my professional opinion. An appeal was subsequently allowed, but the inspector refused to consider an award for costs as the incidents took place before the appeal was lodged. The ombudsman also refused to look at it because the matter was taken to appeal. Surely one should not have to give up the right of appeal to have such matters investigated? BP

The remit of the Ombudsman does not normally extend to cases where a complainant has a legal remedy. In this case, there was recourse to the appeal procedure, which you took up. The inspector could not be faulted, in my view, for declining to take into account the behaviour (which you do not specify) of the members, provided that they gave adequate planning reasons for refusal even though this did not follow the officer’s recommendation. There did not seem to be any other reason in line with circular 8/93 for the award of costs in the appeal process. It seems to me that you are primarily dissatisfied with pre-appeal procedures rather than the appeal outcome itself, and in such a case it may just be worthwhile to re-approach the Ombudsman emphasising this fact. I think that the Ombudsman would also expect evidence of the extent to which the local authority’s own complaints procedures had been fully explored. However, I am aware of at least one case quoted in Development Control Practice 6.28, where the Ombudsman did opt to pursue a complaint even though the matter had been through the appeal process, although much would depend on the individual circumstances. Failing that I am not aware of any other means of redress, although I agree that your client seems to have been harshly treated. GE

Response

While I have a great deal of sympathy with BP the interesting question is  - why was his client asked to submit a planning application? If the dwellings were built in accord with the siting approved then is there in fact a breach of planning control arising from the error in the context shown for information on the drawings? The context shown, no doubt outside the ‘red line’, is not a formal component of the application. Does this constitute a breach of planning control.  Alternatively is this a processing error that is indeed within the remit of the Ombudsman, but in respect of a complaint brought by the occupants of surrounding dwellings that now may find the development too close to them. I would be interested to hear of reader’s views on this matter. DE.

Permission was recently granted for an affordable housing scheme but when built it became clear that it harmed the setting of at least one listed building. The officers' report to committee did not mention any adjoining listed buildings. Neither was any consideration given to the statutory duty to protect their setting when the application was assessed and determined. Do you agree that a judicial review of this decision would be successful and what are the time limits for this? Does it run from the date of the permission or the date that the last of any conditions has been discharged?

It is now too late to seek a review of this decision. Applications for judicial review must be made promptly and in any event not later than three months after the grounds to make the claim first arose. In R ex parte Bunkett v Secretary of State for Local Government, Transport and the Regions [2002], the House of Lords ruled that the time limit runs from the date of the permission and not when the resolution was made. The discharge of any condition is irrelevant. Persons seeking a judicial review must have a sufficient interest in the decision. This can cause difficulties where it is sought in the public, rather than some private, interest. An authority's failure to take account of a relevant matter when determining an application, as would appear to have occurred here, is a justifiable ground for seeking a judicial review. Following the approach taken in R (Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2006], if an officers' report is materially flawed it is highly likely that the decision is also flawed and will therefore be quashed. So a review might well have succeeded in your case.

A notice of planning permission for a house extension failed to relate it to an amended scheme that had been reduced in size following negotiations. Two months later, the local authority spotted its mistake and issued a replacement notice with a condition restricting the permission to the smaller proposal. The applicant has questioned the second permission's validity. The authority claims that it is entitled to issue a corrected notice and that should the applicant build the larger extension it will take enforcement action. However, I cannot find any power that allows an authority to Act in this way. Do you agree and what would be the outcome of a complaint to the ombudsman? WA.

It is the Actual notification in writing to the applicant that constitutes the grant of permission rather than the decision made by the local planning authority. In an appeal case from Kent in 2005 (DCS Number 010-003-817) a local authority and an inspector agreed that the authority had no power to issue a second notice to correct a permission that it had issued in error.

This seems to be supported by the judgment in Fisher v Wychavon District Council [2000]. Where a notice is not clear on its face, the courts have held that it is permissible to look at extrinsic evidence to resolve the issue. But this does not seem to be applicable here. Instead, the first decision notice appears to constitute a valid permission. The appropriate course of action would have been for the authority to have considered revoking the decision. Should the ombudsman become involved in this matter, it is unclear what the outcome would be because the applicant does not appear to have suffered any serious injustice. PM.

I am currently dealing with a similar issue. An authority recently noticed that an application that it approved more than a year ago did not show the "blue land" required by its guidance notes. While the authority appears to accept that there is no prejudice to any party, it now claims that the permission is invalid and will be removed from the public register. My client maintains that once issued the decision is valid and can only be removed if formally revoked or successfully quashed following a legal challenge, the period for which has long since expired. I am not aware of any other power available to the planning authority to remove an issued decision from the register. While the proposal itself would probably not be controversial, resubmitting the application would be inconvenient and costly. Is the authority entitled to do what it proposes? If not, what might the owner do to protect his position? DE.

There is no power that allows an authority to withdraw a notice of permission - even where this is considered to have resulted from an invalid application - other than in accordance with the revocation procedures set out at sections 97 and 107 of the Town and Country Planning Act 1990. If the authority accepts that there has been no prejudice in this case, I cannot see why it should think that such Action is necessary. Your client should consider carrying out a material operation to commence the approved development, thereby preserving the permission, and seek counsel's advice. PM.

What constitutes a minimum start on a building site to keep a planning permission alive? RH.

The works which need to be carried out are set out in section 56 of the Town and Country Planning Act 1990 and they can be fairly minimal, for example, digging a relatively small amount of foundation trench. If conditions prevent development until approvals have been obtained, for example for material samples or a landscaping scheme, have not been complied with, it is likely that it would be held that the permission has not been validly commenced. The general issues are considered in section 6.34 of Development Control Practice and the issue of commencement in breach of a condition in section 6.342. JH.

I have submitted an application to discharge all pre-commencement conditions for an application approved in 2006. We anticipate confirmation shortly that the information is sufficient for commencement. My client wants to demonstrate that a material operation has taken place to keep the permission extant. Does the laying out or construction of the access count as a material operation, or would it be prudent also to construct a bike store? DW.

S56(4) of the Town and Country Planning Act 1990 includes in the definition of "material operation" "any operation in the course of laying out or constructing a road or part of a road". Thus, if the access can be considered a road, that would keep the permission alive. Otherwise, it would be prudent to commence the bike store, but the amount of work necessary can be minimal as digging part of the foundations would be a material operation. JH.

A client started using permitted development rights to form an access to an unclassified road, which meant he had to knock a wall down. He made enough space for a car, but it was his intention to make it somewhat wider.  He has taken some time to do this and during the time the area was made a conservation area.  Does he require conservation area consent to continue demolishing down the wall? SC.

The situation is analogous to starting an extension prior to the General Permitted Development Order Amendment came into effect on 1 October which was discussed in Forum on 3 and 24 October 2008. Section 4.343 of Development Control Practice discusses this issue in some detail and I would not consider your client requires conservation area consent. It would, however, be advisable to discuss this with the planning authority before continuing work to ensure they are satisfied with the situation to avoid the possibility of enforcement action being taken. JH.

With regard to commencement of development as a method of keeping permissions alive, the need to comply with pre-conditions is understood - Henry Boot Homes v Bassetlaw District Council (2001) refers.  However it is often the case that permissions are granted subject to post-commencement conditions such as the requirement to implement a landscaping scheme which was previously agreed and formed part of the decision in the first planting season after the development commences.  While it is obvious that the developer leaves themselves open to enforcement action having not carried out the work specified such a condition, is this in any way fatal to making the permission extant?   SM

The only conditions where non-compliance would mean the development had not been validly commenced would be those incorporating a phrase such as, "No development shall be commenced until…". In such cases, the breach of control would be the carrying out of the development and any enforcement notice should be addressed in such terms. Failure to carry out a condition requiring subsequent action such as implementing a planting condition would not invalidate the permission. In these circumstances any enforcement notice should specify failure to comply with a condition or, of course, a breach of condition notice could be served. JH. 

Could you provide guidance on what constitutes the implementation of a planning approval, specifically how much work needs be undertaken before the approval expiry date to constitute implementation and therefore not require a re-application. Is there a generally accepted principle or does it differ between authorities? LB.

The works which need to be carried out are set out in section 56 of the Town and Country Planning Act 1990 and they can be fairly minimal, for example, digging a relatively small amount of foundation trench. If conditions which prevent development until approvals have been obtained, for example for material samples or a landscaping scheme have not been complied with, it is likely that it would be held that the permission has not been validly commenced. The general issues are considered in section 6.34 of Development Control Practice and the issue of commencement in breach of a condition in section 6.342. Whilst in theory different authorities should not have different views on what constitutes a valid commencement, there is in practice scope for different interpretations. To avoid possible litigation over such issues, therefore, when carrying out works to keep permissions alive it is prudent to contact the planning authority to inform them of what you have done and to ensure they are satisfied that you have commenced the work. JH.

Planning permission was granted for a new building and it was built and occupied, but it subsequently burnt down within the three-year commencement period. It now needs complete rebuilding.  Can the permission be implemented twice? RE.

The case of Iddenden v Hampshire County Council (1972) held that there was no right to re-erect a demolished building. If there were rights to rebuild and it was possible to implement a permission twice, it would mean a building could be rebuilt many years later provided the original permission was implemented within three years. If an area’s character changed through redevelopment, etc, this could result in some very anomalous developments. Section 9.612 of Development Control Practice includes useful guidance on rebuilding dwellings destroyed by fire or other accident. JH. 

Response

I am sorry if I have got the wrong end of the stick but has JH not rather missed the point? I believe that RE is limiting his enquiry to a situation where a permission is implemented but the building burns down during the three-year life of the original permission; thus leaving enough time to re-implement the permission within that time frame. TW.

Further Response

RE’s query did relate to a building burnt down within the three-year period. The wording for the standard commencement condition derived from Circular 11/95 is "The development hereby permitted shall be begun before the expiration of three years from the date of this permission". This only relates to the commencement of the work. Thus if the developer has completed a scheme within three years, the condition has clearly been complied with. If there was a right to re-implement a permission whether it was being done within three years or subsequently would be immaterial provided the permission had been COMMENCED within three years as that is all the standard condition requires. Thus a right to re-implement a permission, if there was one, would mean a building could be rebuilt many years later when circumstances had changed (or presumably be rebuilt more than once). Such an interpretation would result in extremely illogical consequences and it is a principle of law that normally it is interpreted in a way that is most logical if it is unclear. The argument I am putting forward, however, is based on logic not legal precedent and I wonder if a reader can cite a court case or similar where this issue has been decided. JH.

Further Response

There is a relevant court case: Cynon Valley Borough Council v. Secretary of State for Wales [1986]. This concerned a change of use rather than operational development, but the Court of Appeal held that once a change of use permission had been implemented, it was "spent" and a later change of use back to that permitted use constituted development and a new permission would be needed. The same principle would seem to apply to operational development; the very nature of a planning permission is that it allows one scheme of development (leaving aside the special case of minerals) to be carried out once, whether that be a change of use or construction of a building. MA.

Further Response

In Hall v Secretary of State for the Environment [1998], the court held that once a building is built, the permission is spent and cannot authorise demolition and rebuilding. The context was a dispute about the validity of an order made under s257 of the Town and Country Planning Act 1990 to stop up a public footpath.  Such an order can have effect only before the development which makes the footpath alteration necessary is carried out.  In this case the footpath had already been obstructed by a wall when an inspector came to confirm the order, so the developer demolished the wall to enable the confirmation to take place. The inspector's decision to confirm the order was quashed because, it was held, the wall’s construction meant the permission was spent so there was no extant permission to rebuild it which would have made it necessary to divert the path. PN.

My client wishes to keep a planning permission alive by making a material start. He must discharge a number of ‘pre-development’ conditions in the normal way but there is also a section 106 agreement that requires some pre-development payments. If my client makes a start, having discharged the pre-development conditions but NOT made the s106 payments, is the start invalid? NT.

A line of cases commencing with F.G. Whitley & Sons v Secretary of State for Wales and Clwyd County Council 1992 has established that failure to comply with conditions preventing work commencing until details have been approved may make any commencement unlawful, so the implementation is invalid. I am not aware of any cases where failure to make a payment or otherwise not comply with a planning obligation has been an issue in determining whether a commencement is valid, but applying the principles of Whitley and the other cases, I consider it very likely it would be considered the permission had not been implemented validly. JH.

Response

I acted for a client where this issue arose in an appeal (DCS no: 041-815-175) against a lawful development certificate refusal where development commenced after discharging pre-commencement conditions but without a pre-commencement S106 obligation having been complied with. I argued that it would be incorrect to suggest a planning permission is incapable of being commenced within the meaning of section 56(4) of the Town and Country Planning Act 1990 because pre-commencement requirements of a Section 106 agreement remain unsatisfied. The Inspector agreed. JB.

Having read the appeal decision, it seems the issue was raised by a third party rather than the planning authority and the inspector does not explain the reasons for his view. Whilst inspectors do make mistakes, it does suggest my view might possibly have been wrong. JH.

A client wishes to keep alive a permission to convert an outbuilding to a granny annex. Section 56(4) of the Town and Country Planning Act 1990 says "the laying of any underground main or pipe to the foundations" would qualify as a start, but a 50m trench would have to be dug to connect to the existing foul drain. Is there any case law which would enable my client to keep his permission alive by digging part of this trench and laying a small length of pipe?  JS.

I am not aware of any case law on this issue, so cannot answer definitively. As section 56(1) of the Town and Country Planning Act 1990 defines "material operations" sufficient to keep a permission "alive" to include "any work of construction in the course of erection of a building" and "any work of demolition of the building" and in this context "building" includes part of a building as the previous answer explains, to be sure of keeping the permission alive, I suggest you carry out such work. JH.

Planning permission and listed building consent were granted to convert a coach depot to residential. Just before the permission expired a small section of the floor was dug up and (with Building Regulations approval) minor excavations were undertaken. All pre-commencing conditions have been complied with, but it is still being used as a coach depot and no external works have been undertaken. Have the works commenced?  LA.

The law relating to the validity of planning permission commencements is quite complex and section 6.341 of Development Control Practice explains the principles. This question raises the issues; does it matter if the work is minor; if the work is internal only and if the coach depot use is continuing. As section 6.341 explains, the work required to keep a permission "alive" can be quite minimal, so the fact the excavations may be minor would not affect the commencement’s validity.

Moving on to the second issue, although planning permission is not required for internal works to a building, when a proposal involves internal and external work, strictly the planning permission relates to both aspects of the scheme and the development comprises the entirety. A recent certificate of lawful development certificate appeal which demonstrates this point is DCS no 100-067-316. The work being internal only would not mean the commencement is invalid.

The third issue is more difficult to advise on. If the permission is fully implemented, the principle of a new chapter in the planning history as expounded in the case of Jennings Motors Ltd v Secretary of State for the Environment 1982 would apply (Section 4.3252 of Development Control Practice explains this principle in more detail) and the coach depot use right would be extinguished. It might be argued that commencing the development would extinguish the coach depot use. I am not aware of any court case that has adjudicated on this issue. A planning appeal relating to the conversion of a milking parlour in Devon to holiday accommodation (DCS no 100-067-439) suggests the previous use right was extinguished when the conversion works were commenced, but the inspector gives no explanation for taking that view. Unless there is a case supporting the inspector’s view I have missed, I would be wary of suggesting the permission had not been validly commenced.  JH.

On four separate planning applications, a flat-roofed dormer loft conversion and other extensions were proposed. In each case we were forced to remove the dormer elements, as it conflicted with the council’s current supplementary planning guidance even though they were permitted development. The remaining elements were approved but confirmation was sought that the dormers were permitted development. Subsequent confirmation contained a caveat saying the response was not legally binding, leaving applicants with a certificate of lawfulness application the only option for formal confirmation. We welcome your thoughts as to whether this stance is appropriate and whether the permitted development aspects should be included within an approval for other elements. IH.

It does seem inappropriate for this authority to have guidance which prohibits what can be built as permitted development. Regarding the use of the caveat, even if this were not included in the authority’s response, the views expressed would not bind the authority. As section 6.37 of Development Control Practice on estoppel explains, statements by individual officers cannot bind authorities. The only way to obtain a binding view on whether a proposal


Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Sign up now
Already registered?
Sign in

Join the conversation with PlanningResource on social media

Follow Us:
Planning Jobs