Material operation and when development has begun

Development is treated as begun on the earliest date on which any material operation comprised in the development starts to be carried out. That rule, in section 56 of the Town and Country Planning Act 1990, is what keeps a permission alive, and it is also what decides whether the three year clock has stopped. A material operation is a defined list rather than a general idea of starting work, and site clearance, fencing and a site cabin are not on it.

The practical trap sits elsewhere. An operation carried out in breach of a pre-commencement condition can fail to count as a lawful start, so a permission can expire while the digger is on site.

What section 56 lists as a material operation

Section 56(4) defines material operation to include:

• 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 part of the foundations of a building, 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 land which constitutes material development.

Two features of the list matter. The foundation trench limb is specific: a trench dug for drainage, for a service run not connected to foundations, or exploratory trial pits does not qualify, because the trench has to be one that is to contain foundations.

The road limb is broader than people expect. Operations in the course of laying out or constructing a road have been accepted on fairly modest facts, including pegging out a road line and then excavating along it, provided the work is part of constructing the permitted road rather than a gesture.

An operation must be more than trivial, and the courts have declined to set a threshold beyond asking whether what was done was one of the listed operations, carried out as part of the permitted development. The reasoning sits alongside other de minimis judgments in planning.

Why the date matters for a time limit

A full permission normally carries a condition requiring development to begin not later than three years from the date of permission, imposed under section 91 of the 1990 Act. An outline permission carries the structure in section 92: an application for approval of reserved matters within three years, then development begun within two years of the final approval.

Once a material operation has lawfully taken place within the period, the permission is implemented and does not expire. There is no statutory requirement to continue, and a half-built scheme can sit for years, though an authority can serve a completion notice in limited circumstances.

Where the period has passed and nothing qualifying happened, the permission is gone and a fresh application is needed on current policy, which can be a materially worse position where the plan has moved on. Outline permissions have their own complications, and what can and cannot be left to a later stage is set out in reserved matters and what cannot be reserved.

Pre-commencement conditions and lawful start

This is where most of the money is lost. The principle from the Whitley line of cases is that operations carried out in breach of a condition which had to be satisfied before development began are not lawful commencement, because they are not works carried out under the permission at all.

Later decisions have softened the edges. A condition that operates as a true condition precedent, going to the heart of the permission, still bites hard. A condition requiring the approval of details of a later phase, or one that can sensibly be complied with after a start, has been treated differently. The distinction turns on the wording of the particular condition.

Three rules of thumb follow.

1. Identify every condition using words such as before development begins, prior to the commencement of development, or no development shall take place until.
2. Discharge all of them, in writing, before any material operation, and keep the authority's approval notices.
3. Where a condition has been missed and time is short, consider whether a section 73 application or a non-material amendment can resolve it faster than a discharge application, and take advice before putting a machine on site.

Discharging conditions takes eight weeks in practice, sometimes longer where a consultee has to respond, so a permission with four pre-commencement conditions and six weeks of life left is already in trouble.

Works that have failed the test

Operations that courts and inspectors have treated as insufficient, or outside the list, include:

• General site clearance, scrub removal and tree felling.
• Erecting hoarding, fencing or a site compound.
• Delivering materials or positioning plant.
• Digging trial pits or boreholes for investigation.
• Excavation for drainage unconnected with foundations.
• Marking out without any subsequent operation.

Each of these is a reasonable thing to do when starting a job, and none of them stops the clock. The failure mode is predictable: a contractor mobilises in the last fortnight, does the sensible preparatory work, and nobody digs a foundation trench until the week after the permission expired.

Evidence that a start was made

Commencement is often tested years later, on a sale, a funding drawdown or an enforcement enquiry. Build the evidence at the time.

• Dated photographs showing the operation, with a scale object and a fixed reference such as a building corner, taken from at least two positions.
• A site diary entry naming the operative, the plant used and the work done.
• The contractor's invoice and day sheets for that date.
• The building control initial notice or full plans approval, with its date.
• Delivery notes for concrete or pipe used in the operation.
• A short statutory declaration from someone who was present, made close to the time rather than a decade later.

Photographs alone are weaker than they look, because a trench in a photograph does not prove what it was for. Pair the images with a drawing showing where the trench sits relative to the approved foundation layout.

Effect on levy liability and obligations

Commencement is also the trigger for money, and the sequencing is unforgiving.

Where the Community Infrastructure Levy applies, a commencement notice must be submitted to the collecting authority before development begins. Starting without it can mean losing an exemption or relief that had been granted, and surcharges can follow. Self-build and residential extension exemptions are the ones most often lost this way, because the owner does not treat the first trench as commencement.

Obligations in a section 106 agreement are usually keyed to commencement too, so a payment or a bond may fall due on the same day. Read the agreement's definition of commencement, because it is often drafted more widely than section 56 and can be triggered by works that would not implement the permission.

A short Planning Statement is not what resolves any of this, and the document that does is a commencement checklist agreed between the client, the contractor and the agent before anyone mobilises.

Recording commencement properly

Do these five things on the day.

1. Confirm in writing that every pre-commencement condition has been discharged, listing the approval references.
2. Submit the commencement notice to the collecting authority, and keep the acknowledgement.
3. Carry out an operation that is plainly on the section 56 list, most reliably a foundation trench dug in the approved position.
4. Photograph and document it as set out above, and store the record with the title deeds rather than on a site laptop.
5. Write to the local planning authority stating the date development began and what was done. There is no statutory duty to do so for planning purposes, and a dated letter on the case file is useful evidence later.

One honest uncertainty: whether a particular operation counts is fact sensitive, and inspectors have reached different conclusions on similar facts. Where a permission is near the end of its life and the client's position depends on the answer, get legal advice before relying on marginal works.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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