Three year permissions and lawful commencement before winter

Lawful commencement of a planning permission means carrying out a material operation on the site, after every condition that had to be satisfied first has been discharged. Do that before the date on your decision notice and the permission is safely implemented. Put a digger on site in December with a drainage condition still outstanding and you may have done nothing at all in legal terms, whatever the mud suggests.

For a self-builder there is a second trap. Starting before your exemptions are in place can cost you the Community Infrastructure Levy self-build relief entirely, and that is money you do not get back.

The date on your decision notice

Section 91 of the Town and Country Planning Act 1990 requires most permissions to carry a condition that development begins within three years of the grant. Find the condition on your decision notice and write the date on the front of the file. Authorities sometimes set a shorter period, and a permission granted on appeal runs from the appeal decision rather than from the original refusal.

If the permission is an outline, the arrangement is different and the dates are tighter. Section 92 sets a period for submitting the reserved matters and a shorter period for starting once the last of them is approved. Read both.

You cannot apply to extend the period. There was a route to do that between 2009 and 2012 and it no longer exists, so the only options are to start in time or to apply again.

What counts as making a start

Section 56(4) lists the operations that begin development. The ones that matter on a single plot are construction work on the building, demolition, digging a trench that will hold the foundations, laying an underground pipe or main to that trench, and work on a road.

The jobs most builders do first are not on the list. Clearing the site, taking down a hedge, putting up hoarding, stripping topsoil, bringing in a welfare unit and forming a temporary access are all useful, and none of them starts the development. If your three years are nearly up, the work has to be a foundation trench, a drain run to it, or the access road formation, dug in the right place and to the approved detail.

The work also has to relate to the permission you are implementing. A trench in the wrong position, or dug to a depth that matches no drawing, has been held insufficient. Use the approved drawings and set out from the datum on them.

Conditions that must be cleared first

Look for the words before development begins, or before any works start, in your conditions. Those are the ones that block a lawful start, and work carried out while any of them is outstanding will not implement the permission.

Submit them as a single application rather than one at a time, and allow eight weeks plus the time it takes to answer the officer's questions. On a complicated plot, three months from submission to approval is normal rather than pessimistic.

Where a biodiversity gain plan is required, development cannot lawfully begin until the authority has approved it. Self-build and custom housebuilding is among the exempt categories, subject to criteria including the number of dwellings and the site area, so check the current criteria and keep the evidence that you qualify. Where you do not qualify, a Biodiversity Net Gain Assessment and an approved plan are pre-start items with their own lead time.

Why a winter start needs more planning

A start in October or November is harder than a start in April for reasons that have nothing to do with planning law.

Ground investigation is slower and the results are different. Trial pits fill with water, infiltration tests give readings that will not be repeated in July, and a drainage design based on a February soakaway test can be rejected. Our note on winter ground investigation and what season changes sets out those differences.

Surveys have seasons. Bat emergence surveys run roughly from May to September. Great crested newt survey windows fall in spring. Reptile surveys need warm ground. If a condition requires a survey result you cannot obtain until next May, a winter start is not available at any price, and a Protected Species Survey has to be programmed accordingly by a suitably licensed ecologist. That is a legal requirement rather than a preference, and a draft document is only a starting point for the licensed professional who carries out the work.

Then the practical items. Concrete needs protection below a certain temperature. Hedgerow removal and tree works are constrained by the bird nesting season from March to August, which pushes them into winter, but the excavation that follows is wetter. And a mud on the highway condition becomes real in December in a way it never does in June.

Illustrative example: a single plot permission expires on 14 January. The owner submits all five pre-start conditions in early October, gets approval in late November, confirms the self-build exemption, serves the commencement notice, and digs 8 metres of foundation trench on the approved line on 9 December with a surveyor present and the ground sheeted against frost. Dates are illustrative.

The self-build exemptions you can lose by starting early

The Community Infrastructure Levy self-build exemption is granted on application, and the regulations require the exemption to be in place and a commencement notice to be served before work starts. Start first and the relief is lost, with no discretion to restore it. On a self-build plot in a charging authority, that can be a five figure mistake.

The sequence is fixed. Submit the assumption of liability. Apply for the self-build exemption and receive the authority's decision. Serve the commencement notice. Then start. Afterwards there are further steps, including submitting the required evidence within the period the regulations allow after completion, and failing those can claw the relief back.

Residential annexes and extensions have their own exemptions with their own procedures. The common feature is that each depends on paperwork completed before work begins, so build the sequence into your programme rather than treating it as administration.

Recording the start

Years later somebody may need to prove the date. Spend an hour on it.

1. Photograph the works in progress with a dated reference, from positions you can identify on the approved site plan.
2. Mark on a copy of the approved drawing exactly where the trench or pipe run was dug.
3. Keep the plant hire invoice, the groundworker's day sheet and the delivery tickets for that week.
4. Write a short signed note describing what was done, by whom, on what date.
5. File every condition discharge decision notice together, with their dates.
6. File the commencement notice and proof of service, and the exemption decision.
7. Where a condition requires you to notify the authority before starting, send the notification and keep the acknowledgement.

Store it all in one place, digitally and on paper. A lender, a buyer's solicitor or an enforcement officer may ask, and the file is the answer.

If the permission lapses

A lapsed permission cannot be revived. You apply again, and the earlier permission is a material consideration of real weight where policy has not moved against the scheme. Expect a fresh fee unless a free resubmission applies, and expect the authority to apply current policy, which on a plot in a flood zone or a nutrient catchment can mean new evidence requirements.

Two things make the second time harder. Policy may have changed, including national standards and local plan allocations. And the information requirements may have grown, with biodiversity net gain being the obvious example on a site permitted before February 2024. Where a condition was discharged under the old permission, the approval does not carry across automatically, so the discharge work may have to be repeated. Our note on discharging pre-start conditions for a spring start covers the sequencing either way.

Find your expiry date today, list the pre-start conditions, and count backwards. Enter your postcode on PlanScope to see which documents your plot is likely to need, and have any draft reviewed before submission.

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.