Material operation and lawfully starting development

Development is begun, for the purposes of a planning permission, on the earliest date on which a material operation is carried out. Section 56 of the Town and Country Planning Act 1990 lists what counts, and the list is shorter than most people assume. Pegging out the site does not do it. Clearing scrub does not do it. Digging a trench that will hold the foundations does, and once it is done the permission is implemented and the three year clock stops.

What counts as beginning development

Section 56(4) sets out the material operations. Any one of them, carried out lawfully under the permission, begins the development.

• 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 to such a 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

Note what is absent. Site surveys, soil testing, fencing, removing vegetation, erecting a site hut and marking out the building line are not on the list, and none of them implements a permission however much they feel like the start of a job.

The trench must be one that is to contain the foundations of the permitted building, in the permitted position. A trench dug in the wrong place, or dug for a structure that is not part of the scheme, does not count.

Demolition counts where the permission includes it. Where a permission is for an extension and the works begin by taking down an existing conservatory that the permission shows being removed, that is a material operation.

The time limits the operation is racing

Most full permissions carry a condition requiring development to begin within three years of the date of the permission, under section 91 of the 1990 Act. Some carry a different period where the authority has imposed one and given reasons.

Outline permissions work differently under section 92. An application for approval of reserved matters must normally be made within three years of the outline permission, and development must begin within two years of the final approval of reserved matters, or three years from the outline permission, whichever is later. Read the conditions on the decision notice rather than assuming the default.

Section 73 cannot be used to extend a time limit. There is no general mechanism to renew a permission that has run out, so the only route after expiry is a fresh application, assessed against the policy in force at that point.

That last sentence is where self-builders lose money. A permission granted before mandatory biodiversity net gain arrived, allowed to lapse, comes back as an application that has to deliver a ten per cent gain. Policy moves, and an expired permission does not come back on its old terms.

Why a token start may still be effective

A start made only to keep a permission alive is generally effective, provided it is a real material operation done under the permission.

The courts have accepted that the operation need not be substantial. Digging part of a foundation trench, in the right place, with the intention of implementing the permission, begins the development even if nothing else happens for years afterwards. That is settled enough for practitioners to rely on it.

Two cautions sit alongside it. The operation must be lawful, which means any condition that has to be satisfied before works start must already be discharged. And it must be carried out with the intention of implementing the permission rather than as a device, an area where the case law is less comfortable than the shorthand suggests.

The practical answer is to do more than the minimum. A properly set out foundation trench for an actual part of the building, dug by a groundworker with an invoice, is far better evidence than a spade's width of soil moved by the landowner on a Sunday.

Conditions that must be discharged first

This is the step that turns an effective start into an ineffective one.

Where a condition prohibits development in terms before something is approved, carrying out the works in breach means they are not done under the permission, and they do not begin the development. Time then keeps running, and the permission can expire while everyone believes the site is live.

Before any operation:

1. List every condition on the decision notice and on any later variation.
2. Mark the trigger for each: before development, before above ground works, before occupation, or ongoing.
3. Confirm in writing which of the first group have been discharged, with the reference and date of each discharge notice.
4. Where a discharge application is outstanding and the expiry date is close, chase it, and remember that the appeal against non-determination is available if the council does not decide in time.

Remediation strategies for contaminated ground are the usual culprit on brownfield plots, and the contaminated land assessment that supports one has to be prepared by a suitably qualified person, which takes longer than people allow.

An illustrative example

A permission for a single dwelling expires on 14 June. On 2 June the owner has a digger excavate a 6 metre length of the front foundation trench to the depth shown on the approved drawings. The groundworker photographs the trench against the setting-out pegs, with the date on the file. All three pre-commencement conditions were discharged in April. The permission is implemented and the site sits untouched for two years. This example is illustrative.

Evidencing the start for the record

The start is a fact, and facts need proof years later when a purchaser's solicitor asks.

Keep a bundle containing dated photographs from several angles showing the operation and identifiable site features, the contractor's invoice and delivery notes, an extract from the site diary, the setting-out drawing used, and a short dated note recording what was done and by whom. Where a building control initial notice or commencement notice has been given, keep that too.

Tell the local planning authority. There is no general statutory duty to notify a start on a householder or minor scheme, although some permissions carry a condition requiring notice, and section 71ZA style notification requirements apply in particular cases. A short letter to the case officer with photographs costs nothing and puts the authority's own record on your side.

Statutory declarations from the people who carried out the works are worth obtaining while memories are fresh, not a decade later.

Consequences of getting it wrong

If the permission lapses, the development becomes unauthorised if built, and any work already done is at risk of enforcement.

The bank will notice before the council does. Development finance and mortgage offers depend on a valid permission, and a lender's solicitor who cannot satisfy themselves that the permission was implemented will not release funds. Sales fall through on this.

Where there is real doubt, an application for a certificate of lawfulness of proposed use or development can confirm that the works already carried out amount to a lawful implementation, before more money goes into the ground. It is a better use of a fee than an argument after the event.

Practical steps before an expiry date

Work backwards from the date on the decision notice, not from the date you remember.

Six weeks out, audit the conditions and confirm the discharges. Four weeks out, book the groundworker and confirm the setting out against the approved drawings. Two weeks out, carry out the operation and record it. Then write to the authority.

Leaving it to the final week is how sites end up with an operation carried out in the wrong position, or with a condition that turns out not to have been discharged after all. A planning statement is not what you need here. A checklist and a diary entry are.

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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.