The basics #1 - How do we begin?
Starting permissions & section 56.
Well, we have to start somewhere.
Section 56 of the Town and Country Planning Act 1990 tells us the “time when development begun”.
For changes of use, the position is simple enough. Development begins “when the new use is instituted”. But remember - odd though it may seem - use can begin before it actually starts (e.g. a house is in residential use when it’s on the market and ready for letting, but before anyone actually moves in),
For building works, the position is trickier. Development begins when “any material operation comprised in the development begins to be carried out”.
Material operations are defined in sub-section (4). Some of them are well known, e.g. digging a trench which is to contain the foundations of a building, laying an underground pipe to the foundations, or laying out a road.
But how little is enough?
The general starting point is that to commence development, a material operation has to be (i) in accordance with the planning permission, and (ii) more than minimal.
That is not intended to be a high bar. In fact, the courts have made clear that very little needs to be done so long as it’s genuinely intended to further the permission. Indeed, operations can begin a development even if they diverge from the approved plans. Where there are differences, what matters is the extent of those differences - which is a question of judgment in the round for planning decision-makers.
What about pre-commencement conditions?
Generally, works undertaken without complying with all pre-commencement conditions will not commence development.
But there are exceptions to that rule.
For example, in a case where developers had sought approval to a scheme before the deadline, albeit approval was only granted after the deadline. Once approval had been secured, the relevant operations were no longer enforceable against, and so had commenced development.
Another question is whether or not the pre-commencement condition is a true “condition precedent” in the sense that it goes “to the heart” of a planning permission. Breach of a condition which does not go “to the heart” of the permission does not prevent development from beginning.
In the end, if a pre-commencement condition does not go to the heart of the permission, or if one of the exceptions apply in the cases, then it would be irrational for the local planning authority to take enforcement action for breach of the condition. And that is the touchstone. Easy enough to define, and fiendishly difficult to apply on the facts of individual cases.
Some of the key case references (more recent ones available on Bailii):
Malvern Hills DC v Secretary of State for the Environment [1982] J.P.L. 439 - on the little that need be done to satisfy section 56.
F. G. Whitley & Sons v Secretary of State for Wales (1992) 64 P. & C.R. 296 - on the general rule that development which itself constitutes a breach of planning control cannot satisfy the requirements of section 56.
Cases on whether works commence development despite divergences from approved plans: Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1264 (Admin); Green v Secretary of State for Communities and Local Government [2013] EWHC 3980 (Admin); Spackman v Secretary of State for the Environment (1977) 33 P. & C.R. 430.
Cases which follow and expand on Whitley: R. (Hammerton) v London Underground Ltd [2003] J.P.L. 984; Oakimber Ltd v Elmbridge BC (1991) 62 P. & C.R. 594.
Cases on “condition precedents” which go to the heart of a permission: R. (Hart Aggregates Ltd) v Hartlepool BC [2005] 2 P. & C.R. 31l; Dunsfold Park Ltd v Secretary of State for Communities and Local Government [2013] J.P.L. 1568.
