Material start: what counts as beginning development

A planning permission is kept alive by a material operation, and the statute lists exactly which operations count. Section 56(4) of the Town and Country Planning Act 1990 names work of construction in the erection of a building, demolition, digging a foundation trench, laying underground mains or pipes to those foundations, work laying out or constructing a road, and a material change of use. Do one of those before the permission expires and the development has been begun in law.

Doing one of them while a condition precedent remains undischarged is a different matter, and it is where most disputes start.

Why the date of starting matters

Three separate consequences hang on the date, and they do not all point the same way.

The first is the life of the permission. A full permission usually has to be begun within three years of grant under section 91, and an outline permission needs reserved matters applied for within three years and the development begun within two years of the final approval under section 92. Miss either and the permission is gone, with no extension available.

The second is levy liability. The Community Infrastructure Levy becomes payable on the day the development begins, and the collecting authority needs notice of that date in advance under regulation 67 of the levy regulations.

The third is the trigger for conditions. Anything worded "prior to the first occupation" runs from a different point than anything worded "before development begins", and the difference decides whether you have breached a condition or merely front-loaded work.

The operations that count in statute

Section 56(4) is a closed list, and the courts have read it reasonably generously.

Two points are worth holding on to. The operation must relate to the permission being implemented, so a trench dug in the wrong position, or foundations for a building that is not the approved one, does not count. And the work need not be extensive: a short length of correctly positioned foundation trench has been accepted many times.

The traditional trench and peg exercise, where a contractor digs a metre or two of foundation trench in the approved position and drives in setting-out pegs shortly before expiry, remains the usual way to keep a permission alive. It works. It also attracts scrutiny, so the record you make on the day matters more than the digging.

Conditions that must be discharged first

A condition precedent is one that, on its wording, must be satisfied before any development takes place. The principle drawn from the case law is that operations carried out in breach of such a condition are not lawful and do not amount to a lawful implementation of the permission.

Later cases have softened the edges. A condition that goes to the heart of the permission, such as approval of the access or the contamination remediation strategy, is treated strictly. A condition requiring a detail that could be dealt with later, or one drafted as a requirement during construction rather than before it, is less likely to invalidate the start.

You cannot safely rely on that softening. The practical rule is to read every condition, list the ones that must be discharged before work begins, submit them with enough time for an eight-week determination, and keep the written approval. Our note on deemed discharge of conditions under section 74A covers the route where the authority fails to respond in time.

Where the permission has already expired and work was done in breach, the position is usually unrecoverable. That is a resubmission, with all the policy risk that carries if the development plan has moved on.

Lawful implementation and an outstanding condition

The failure mode looks like this. A permission granted with a condition requiring a construction management plan to be approved before development takes place. The contractor digs the foundation trench in week one. The plan is submitted in week six and approved in week twelve.

The digging did not lawfully begin the development, because it breached the condition. If the three-year period ran out in week four, the permission has lapsed and the work carried out is unauthorised.

Enforcement exposure follows. The authority can serve a breach of condition notice or an enforcement notice, and the time limits for enforcement action run from the breach rather than from the grant. The fact that the council later approved the plan does not retrospectively validate the earlier work unless the approval is expressed to do so.

If you find yourself in this position, the honest routes are a fresh application, a retrospective application under section 73A, or an application for a certificate of lawfulness under section 191 where the facts support it. Guessing is not one of them.

Evidence to record on the day

Assume that in five years somebody will ask you to prove the date, and that the person who dug the trench will have moved on.

1. Photograph the works with the whole site in frame, from fixed reference points such as the boundary corners, with a dated image file and a person or scale rule in shot.
2. Photograph the setting out, showing pegs, profiles and the relationship to the approved layout.
3. Keep the contractor's invoice, the plant hire docket and a signed site diary entry naming the operation.
4. Keep a copy of the approved drawing marked with the position of the works.
5. Keep the written discharge of every condition precedent, dated before the works.
6. Where the stakes are high, have a statutory declaration sworn by the person who carried out the operation.

Notify the council in writing that development has begun, quoting the application reference and the date. There is no general statutory duty to do so, but it creates a contemporaneous record and it is the moment to check that the levy notice has been served.

An illustrative example

A permission for four dwellings granted on 14 March, expiring three years later. Two conditions are precedent: a construction management plan and a remediation strategy. The developer submits both nine months ahead, receives written approval, and on 2 February of the final year excavates 3m of foundation trench along the approved line of plot 1, photographs it with the boundary in frame, keeps the digger hire docket, and writes to the case officer the same day. The permission is implemented. This example is illustrative rather than drawn from a specific case.

Keeping an outline permission alive

Outline permissions have two clocks and both can run out. Reserved matters must be applied for within the period set by the permission, normally three years, and the development begun within two years of the final approval of the last reserved matter.

Where a scheme is phased, take care over whether the permission is drafted so that each phase can be begun separately. Many are not, and an operation on phase one may keep the whole permission alive or may not, depending on the wording of the description and the conditions.

Reserved matters approvals themselves cannot be varied under section 73, so the amendment routes are different. Our guides to reserved matters scope and timing and to section 96A non-material amendments set out what can be changed and when.

Consequences of getting it wrong

Losing the levy self-build exemption is the most common and most painful. The exemption is withdrawn where work begins before the required notice is served, and the full charge then falls due with surcharges on top. That has caught out a great many self-builders who assumed the exemption travelled with the permission.

The second consequence is the lost permission itself, which on an allocated site is an inconvenience and on a site the local plan now treats differently can be the end of the scheme.

And the third is a stalled sale. Any competent purchaser's solicitor will ask for evidence that the permission was lawfully implemented, and a folder of dated photographs, discharge letters and a site diary answers that in an afternoon. A vague recollection does not.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. A certificate of lawfulness is the only formal way to confirm that works are lawful. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.