What constitutes development?

What is development?

Under the Town and Country Planning Act 1990 (TCPA 1990) planning permission is required for the carrying out on land of any development.

Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land”.

The lifetime of a planning permission

Full planning permission is usually granted subject to a condition requiring the development to be started within a specified time period. In England, this is usually three years from the date of the permission.

How to prevent a planning permission lapsing

If development is not started within the specified time period, the permission expires and a new planning permission is required.

Once a planning permission has expired, getting a new planning permission may be difficult or more expensive. If planning policies or local development plans have changed in the intervening period, a new planning application for the same development may be refused.

To implement a planning permission the developer must:

• Ensure all planning conditions requiring compliance prior to commencement of development have been complied with.

• Carry out a “material operation” (as defined in the TCPA 1990).

Material operations include:

• 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 any such trench.

Lawful development certificate

A lawful development certificate (LDC) is a certificate issued by a local planning authority certifying that:

• The existing use of buildings or land, or operations carried out in, on, over or under land, or the failure to comply with any condition or limitation attached to a planning permission, is lawful. This is known as a certificate of lawfulness of existing use or development (CLEUD).

• The proposed use of buildings or land, or any proposed operations to be carried out in, on, over or under the land, is lawful. This is known as a certificate of lawfulness of proposed use or development (CLOPUD).

Facts

On 6 July 2020, Rossendale Borough Council (RBC) refused an application for a CLEUD seeking confirmation that a planning permission for a detached dwellinghouse granted on 31 August 2016 had been implemented within the three-year time limit.

The only pre-commencement condition related to a landscaping and boundary treatment plan and was discharged on 11 September 2018.

There was no dispute that by 8 April 2019, a trench had been dug and a plastic pipe laid. The issue was whether these works constituted a “material operation”.
Decision

The appeal was allowed by the Planning Inspectorate. The Inspector considered that the works constituted the start of development as set out in section 56(4) of the TCPA 1990 and as a result the development had been lawfully commenced.

The inspector referred to the following cases:

• Malvern Hills DC v SSE & Barnes and Co [1982] JPL 439 where the court established that the threshold for what is deemed to be material operations is low. The marking out of a line and the width of a road with pegs amounted to “material operations” within section 56(4)(d) of the TCPA 1990.

• Spackman v SSE and Another [1977] 33 P&CR 430. In this case, the issue was whether or not material operations were carried out for the construction of a dwellinghouse. No foundations had been laid and the works that had been carried out included a partially constructed soakaway and drainage trenches in each of which had been laid piping leading to the soakaway.

It was accepted that the soakaway was approximately 35 feet from the nearest soakaway shown on the approved plans, but nevertheless the High Court held that underground drainage works that were no longer visible without excavation constituted the commencement of development even where the foundations or trenches themselves referred to in section 56(4) had not yet been created.

RBC stated that there was no evidence that the works carried out had been done so in accordance with an approved drainage system leading to the foundations or otherwise. The original planning permission did not require the submission of a drainage scheme.

The Inspector considered that the approved permission was a full planning permission for the construction of a single dwelling which required drainage. In accordance with R (Martin Grant Homes Ltd) v Basildon DC [1987] 53 P&CR 397, the drainage works were within the scope of what was allowed by that permission as there was no drainage scheme condition and the works that had been carried out were necessary and reasonable for the implementation of the permission and incorporated within the general grant of consent.

RBC argued that the trench and drainage pipe were so short and required so little excavation that they were de minimis.

However, the Inspector stated that case law showed that the threshold for works is low and in this case the works were clearly undertaken using a mechanical digger. The trench was approximately five metres long and one metre deep. He therefore concluded that the works were not de minimis.

However, the Inspector stated that case law showed that the threshold for works is low and in this case the works were clearly undertaken using a mechanical digger. The trench was approximately five metres long and one metre deep. He therefore concluded that the works were not de minimis.

Advice is recommeded to be sought from a planning consultant in the first instance.