Keeping a permission alive as the three year limit nears

Planning permission time limit expiry is a hard stop. Under section 91 of the Town and Country Planning Act 1990 a permission in England carries a condition requiring development to begin within three years of the grant, and once that date passes without a lawful start, the consent is gone. No form extends it. What you can do is make certain that the start you rely on is a material operation, that every condition standing in front of it has been discharged, and that you can prove both of those things years later.

Most schemes that lose a permission do not lose it by forgetting the date. They lose it by putting a digger on site in week 51 while a pre-commencement condition on contamination or drainage is still outstanding, which leaves the works unlawful and the permission unimplemented.

Where the three year limit comes from

Section 91 requires almost every grant of planning permission to carry a condition that development must begin not later than three years from the date of the permission, unless the authority directs some other period. Authorities do shorten it, usually where a site is sensitive or where the evidence base will go stale, so read the decision notice instead of assuming three years.

Outline permissions run on a different clock. Section 92 sets one period for submitting applications for approval of reserved matters and a second, shorter period for beginning development after the final reserved matter is approved. Miss the first and the outline is worthless even though no building was ever contemplated in year one.

Where permission came from an appeal, the clock runs from the date of the Planning Inspectorate's decision, not from the date your original application was refused.

What counts as a material operation

Section 56(4) sets out the operations that begin development:

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

Courts have accepted modest works as enough, provided they are clearly referable to the approved drawings and carried out with the intention of building the scheme out. A metre of foundation trench in the right position, dug to the approved depth and recorded, has done the job. Trenches dug in the wrong place, or site clearance that matches no drawing, have not.

Site clearance, fencing, soil stripping, tree works and setting up a compound are not in the list. They are the works most contractors do first, which is precisely why so many starts are later found to have been no start at all.

Why section 73 cannot buy you more time

Section 73(5) says expressly that a permission under section 73 may not change a condition by extending the time within which development must be started. The same goes for a non-material amendment under section 96A. Neither route resets the clock, and asking an officer to try usually produces a refusal that then sits on the planning record.

Section 73B was added to the 1990 Act by the Levelling-up and Regeneration Act 2023 as a route to a new permission whose effect is not substantially different from the original. Whether it assists in any particular case depends on its commencement position and on how the authority reads it, so check legislation.gov.uk for the current text before building a programme around it (position as at October 2026).

There was once a route to extend old permissions, introduced in 2009 and withdrawn in 2012, and a temporary extension for consents due to lapse during 2020 under the Business and Planning Act 2020. Both are spent. Anyone quoting them to you is working from an old precedent file.

Pre-commencement conditions that block a lawful start

Works carried out in breach of a condition that had to be satisfied before development began do not implement the permission. That principle, from Whitley and Sons v Secretary of State for Wales, is the single biggest trap on an expiring consent. Not every pre-commencement condition has that effect, because the courts distinguish a true condition precedent from a condition that merely regulates how work proceeds, but you should never gamble on which side of the line a condition falls.

The biodiversity gain condition deserves separate attention. For permissions caught by the Environment Act 2021 regime, development cannot lawfully begin until the authority has approved a biodiversity gain plan, and on a phased scheme that approval is needed phase by phase. A programme that assumed a start in November and only commissioned metric work in September is a programme in trouble.

The Community Infrastructure Levy commencement notice is not a planning condition at all, so it will not invalidate your start, but serving it late can cost you instalment rights and any claimed exemption. Treat it as part of the same checklist.

The evidence to capture on the day you start

Years later the question will be decided on documents, often in the context of an application for a lawful development certificate. Record more than feels necessary.

1. A dated, geolocated photograph set of the works, taken from fixed reference points that also appear on the approved site plan.
2. The approved drawing number marked up to show exactly where the trench or road formation sits.
3. Contractor day sheets and plant hire invoices showing the date and the operation.
4. A short signed note from the site manager or your project monitor describing what was done and why it was done.
5. Copies of every condition discharge approval, with the decision dates, assembled in one file.
6. The Community Infrastructure Levy commencement notice with proof of service, plus any assumption of liability notice.
7. Where a condition requires written notification before works start, the notification and the authority's acknowledgement.

Illustrative example: on a 48 unit site with a permission expiring in March, the team discharges conditions on archaeology, drainage and materials by January, obtains approval of the biodiversity gain plan in February, serves the levy commencement notice, then digs 15 metres of the estate road formation on the approved alignment in early March with a surveyor present. The road formation is a listed material operation, the conditions were cleared first, and the survey record ties the work to the approved drawing. The figures here are for illustration only.

Phased and outline permissions have their own clocks

On a single permission for a phased scheme, a lawful start on one phase will normally implement the whole permission, which is why some authorities now draft phase specific time limit conditions and separate pre-commencement triggers for each phase. Read those conditions closely, because a start on phase one may do nothing at all for phase four.

Where phasing matters to the viability of the later parcels, the time to fix it is before the decision issues. Once the condition is on the notice you are arguing about wording with a case officer who has moved on to other files, and the only lever left is a section 73 application that cannot touch the time limit anyway. Getting the officer's case file and the consultee responses early helps here, and our note on getting consultee responses and the officer's case file explains how to ask.

When a fresh application is the only route left

If the clock will beat you, apply again rather than start unlawfully. An extant or recently lapsed permission for the same development is a material consideration of real weight, and where policy has not moved against the scheme the second decision is usually a reflection of the first. Budget for the fee, check whether a free resubmission applies, and look at planning fee exemptions and reductions before you pay.

Two practical points. A duplicate application submitted while the original is still alive gives you a second permission with its own three year limit and keeps the original intact, which costs far less than discovering in month 34 that you cannot clear a condition. And where a section 106 agreement attaches to the old permission, the new one will need its own deed or a deed of variation, so look at varying a section 106 agreement after permission in parallel rather than afterwards.

The supporting narrative for a renewal is short, but it still has to say why the scheme remains acceptable against the adopted plan and the current National Planning Policy Framework, which is what a Planning Statement is for. Draft it early, because officers read the planning history first.

Work out your expiry date, list every condition that stands in front of commencement, and give yourself a clear quarter of slack. Enter your postcode on PlanScope to see which reports a renewal or duplicate application is likely to need.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it.