Lawful commencement: material operations in practice

A planning permission is kept alive by a material operation, not by intention. Section 56(4) of the Town and Country Planning Act 1990 lists what counts: work of construction in the course of erecting a building, work of demolition, digging a trench that is to contain foundations, laying an underground main or pipe to those foundations or that trench, any operation in the course of laying out or constructing a road, and a change of use that amounts to material development. Do one of those, lawfully, before the time limit expires and the permission is implemented for good.

Get it wrong and you lose the permission on the date it expires, whatever was happening on site that week.

Why lawful commencement matters

Section 91 imposes a default three-year limit on full permissions, and section 92 gives outline permissions a separate structure: three years to apply for approval of reserved matters and two years from the approval of the last of them.

Once implemented, the permission does not lapse. That is worth money in three situations. Where the local plan has moved against the scheme and a fresh application would fail. Where policy on a specific issue has tightened, mandatory biodiversity net gain and building safety being the obvious recent examples. And where the land is being sold, because a live implemented consent is a different asset from an unimplemented one.

The risk sits with the developer. A local planning authority has no duty to tell you your permission is about to expire, and the expiry date printed on the decision notice is the one that counts. That notice and its conditions sit on the statutory planning register, which is where a buyer's solicitor will look first.

The operations section 56 recognises

The statutory list is short and deliberately wide. Courts have accepted modest works as material operations where they were carried out in earnest under the permission, including marking out and excavating part of the line of an estate road.

What the list does not include matters as much:

• Site clearance, vegetation removal and levelling, unless they form part of one of the listed operations.
• Erecting hoardings, a site office or welfare facilities on their own.
• Soil investigation boreholes and trial pits carried out for survey purposes.
• Demolition, unless the demolition is itself part of the permitted development. Demolition under a separate prior notification does not implement the permission for what replaces the building.

The trench is the usual route because it is unambiguous. A trench dug on the line of the foundations shown on the approved drawings, to a depth that is plainly a foundation excavation rather than a service run, is hard to argue with.

Where the permission covers a road, laying out part of it is equally good, and on larger sites it is often the first thing that can realistically be done.

Pre-commencement conditions and lawful starts

This is where schemes are lost. A material operation carried out in breach of a condition that had to be discharged first is not a lawful start, and the permission can expire around a half-built foundation.

The principle comes from Whitley and Sons v Secretary of State for Wales, and later cases have refined rather than removed it. The working rule is that operations carried out in breach of a condition going to the heart of the permission do not amount to lawful implementation. Conditions of a more peripheral kind may not have that effect, but you do not want to be arguing about which category yours falls into at the point the three years run out.

Three practical consequences.

1. Count the pre-commencement conditions on the decision notice, list them, and put a date against each one. Discharge takes eight weeks and authorities frequently ask for more information part way through.
2. Submit details early enough that a request for further information does not push you past the expiry date. Twelve weeks before expiry is tight. Six months is comfortable.
3. Check the wording. Some conditions bite before development begins, some before above-ground works, some before occupation. Only the first group blocks a lawful start.

A discharge application submitted but not determined is not a discharge. If you are running out of time and the authority has not decided, take advice before doing anything on site.

Token works and how they are treated

The law permits a minimal start. Whether it is wise is a different question.

The courts have accepted small operations as material, and they have also held that a start must be genuine rather than a colourable device. An authority that believes works were staged purely to keep a permission alive, with no intention of building, may argue the operation was not carried out in the course of the permitted development at all.

The safer approach is to do something that would have been done anyway. Excavate a real length of the actual foundation trench, in the right place, to the right depth, and leave it open long enough to be inspected. Doing it with the contractor who will build the scheme, under the approved construction arrangements, removes most of the argument. Where a construction management plan has been conditioned, the start should comply with it too.

There is one more trap. A start must be within the permission. Works built to a revised layout that has not been approved are not implementing the permission you hold, they are unauthorised development.

Evidence to record on the day

Nobody remembers this in five years. Build the file on the day.

Where the works are modest, consider applying for a lawful development certificate for existing use or development under section 191 of the 1990 Act once the start has been made. It is the only formal way to confirm that what you did was lawful, and having one removes the question from any future sale.

On a site straddling an authority boundary the position doubles, because each permission must be implemented separately. That and the other complications are covered in our note on cross-boundary sites and applications to two councils.

Effect on Community Infrastructure Levy liability

Starting development is also the event that crystallises a Community Infrastructure Levy charge, and the procedural requirements are unforgiving.

Where a site is CIL liable, someone must assume liability before the start, and a commencement notice must be served on the collecting authority before the first material operation. Serving it late, or not at all, removes the right to pay by instalments, can trigger a surcharge, and where relief or an exemption has been granted can put that relief at risk.

The self-build exemption and the residential extension exemption are the ones that catch people. Since the 2019 amendments the consequence of a late notice where relief has been granted is generally a surcharge rather than automatic withdrawal, but the detail is fiddly and it has changed more than once. Check the current Community Infrastructure Levy Regulations and the collecting authority's own published procedure before you dig, not after.

Rates are indexed annually, so check the authority's current charging schedule rather than the figure quoted when the application was submitted.

Where advice is worth taking

Three situations justify paying for a view before any plant arrives on site. A permission with more than a handful of pre-commencement conditions and less than six months to run. A permission where the scheme has changed since approval and no section 73 application has been made. And any CIL liable site carrying a relief or exemption.

Enter your postcode on PlanScope to see which reports and supporting documents a scheme on your site is likely to need.

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