Commencement in Any LanguagePublished on: 18 March 2021
When it comes to development which has been authorised by planning permission, commencement means different things at different stages. If a planning permission is in danger of expiring, commencement of the development in time is crucial to keep the permission alive. If a developer is wondering whether a section 106 obligation may have been triggered, the question becomes whether commencement has occurred or whether any works are merely preliminary works which have been excluded from the definition of commencement in the section 106 agreement. Finally, for the purposes of the Community Infrastructure Levy (‘CIL’), payment, which may in full or in instalments, becomes due from the date that a chargeable development is commenced.
Commencement is known by different names, depending on which procedure is under consideration. In relation to preserving a planning permission, the relevant legislation requires that development “must be begun” within a time period specified in the planning permission or a default period of three years for England and five years for Wales. This consequence of not beginning development within that time period is that the permission will expire, in the sense that any development carried out after the time period will not be authorised by the permission.
Development begins when a material operation which is comprised within the authorised development starts. A material operation is defined in section 56(4) of the Town and Country Planning Act 1990 and essentially means any work of construction or demolition of a building, certain works for the foundation of a building, any operation for laying out or constructing a road and a change of use (subject to certain exceptions).
What are Pre-commencement Conditions?
In order to come within the planning permission, the development must be begun in accordance with conditions attached to it, including conditions which prohibit the start of development until certain procedures are carried out, known as pre-commencement conditions. This is an area of planning that has been the subject of much case law debate which is outside the scope of this article. However, one point which is relevant to this article is that, as long as pre-commencement conditions are complied with and what the developer does is within the development permitted by the permission, minor works can be sufficient to start and therefore preserve planning permissions.
Section 106 agreements or undertakings, if required, are almost always completed before the grant of planning permission. They contain obligations on the developer, which could be restrictions, obligations to carry out works or to pay contributions, which the planning authority requires to make the development acceptable.
Section 106 agreements refer to the commencement or implementation of development in two ways. Firstly, section 106 agreements will often not become effective or ‘in force’ until the planning permission is granted and development commences. This is an acknowledgement that a developer does not have to implement a particular permission, just because it is granted, and can choose to develop their land under alternative permissions or schemes.
Section 106 agreements also often carve out certain works to avoid triggering obligations which are due on commencement of development while the developer is carrying out preliminary site works. Therefore commencement of development is often a slightly different concept, depending on whether you are talking about preserving a planning permission or triggering an obligation in a section 106 agreement. It means different things and is called different things, much like ‘Love’ in the 1980s song ‘Love in Any Language’ by Christian singer Sandy Patti, from which I made up the title of this article to make it seem even more interesting than it already is.
What Else Should Developers Consider?
In addition to the above, developers building in authorities which have adopted a CIL charging schedule have to consider the definition and consequences of the commencement of a development within the CIL Regulations. They are under an obligation to notify the charging authority (which is the same as the LPA) of their intentions to commence development at least a day before commencement. The CIL charges become due on commencement of development. A lack of awareness of this process can attract surcharges and have the consequence of moving forward payments which were supposed to be made in instalments.
In the appeal decision of Anon v Cotswold District Council, decided on 3 March 2021, the inspector considered whether the widening of an access fell within the definition of commencement as set out in the CIL Regulations. The regulations state that, subject to certain exceptions, development is commenced on the earliest date that a material operation is carrying out on the development site. ‘Material operation’ has the same meaning in the regulations as in section 56(4). The exceptions relate to situations where a permission has previously been granted for the same development, for instance section 73 permissions which relate to the variation of conditions on a previously granted permission.
The development was for the conversion of a gospel hall. The authority concluded, after a routine visit, that the presence of some metal fencing, a pile of rubble, a portable toilet, a small digger and a skip was sufficient evidence that development had commenced without the developer serving a commencement notice. A demand notice was served on the developer for the CIL charges and a surcharge.
The developers appealed and countered that the photographs of the items above, which were produced by the authority during the appeal, did not demonstrate commencement of the development. They stated that some of the items were there so that an existing vehicular access could be widened to enable equipment to be delivered to the site to allow development to commence on a certain date. The inspector upheld the appeal because the widening of the vehicular access did not form part of the development authorised by the permission.
It could be that the authority did not give the developer a chance to put forward this reason for the skips etc, did not properly consider what the developer had to say or did not believe the developer. However, it should be noted that that is the kind of evidence that is often presented to LPAs to demonstrate that a development under a planning permission has been commenced within the time relevant time period. The key issue is the wording in section 56(4), which was highlighted in the inspector’s decision, that the material operation (however minor) had to be ‘comprised within the development’ authorised by the planning permission.
Whether the question at hand is keeping a permission alive, CIL liability or the triggering of a section 106 obligation, commencement is an issue that sometimes requires the help of experts. The planning team at Lanyon Bowdler is able to assist with this or any related issues. Please contact us for further information.