What Counts as Commencement of Development?

Obtaining planning permission is a major milestone in any development project. However, securing consent is only the beginning of the process. Developers, landowners, and property professionals must also understand the concept of commencement of development, as this determines whether a planning permission remains valid or expires.

Planning permissions include a time limit for starting development. If work does not begin within this period, the permission may lapse and a new application may be required. Understanding what legally counts as “starting” development is therefore essential.

In practice, the legal threshold for commencement is often much lower than many people assume. Relatively minor works can be enough to keep a planning permission alive. However, there are also important legal pitfalls, particularly where pre-commencement planning conditions have not been discharged.

This article explains what may count as commencement of development and some common issues that arise in practice.

Planning Permission and Time Limits

Most planning permissions include a condition requiring development to begin within a specified period.

Full planning permissions must generally be commenced within three years from the date permission is granted.

Outline permissions are subject to slightly different rules, typically requiring:

• submission of reserved matters within a specified timeframe; and

• commencement within two years of the final reserved matters approval.

If development is not begun within the required period, the planning permission will normally expire.

Once this happens, the developer loses the right to carry out the approved development and must submit a new application if they still wish to proceed.

This can have significant implications.

Planning policies may have changed since the original permission was granted, meaning that a new application could face stricter requirements or even be refused.

For this reason, developers often seek to lawfully commence development before the permission expires.

The Legal Definition of Commencement

The legal definition of commencement is found in Section 56 of the Town and Country Planning Act 1990.

The legislation provides that development is considered to have begun on the earliest date when a “material operation” comprised in the development starts to be carried out.

Section 56(4) provides examples of material operations, including:

• digging foundations or trenches

• laying underground pipes or drains

• constructing a road or access

• erecting part of a building

• demolition of buildings where authorised by the planning permission.

Importantly, the material operation does not need to be completed. The act of beginning the operation is enough.

In practice, this means that relatively minor construction works can constitute commencement, provided they form part of the approved development.

The Threshold for Commencement Is Relatively Low

The courts have consistently confirmed that very little work is required to commence development for the purposes of planning legislation.

For example, in East Dunbartonshire Council v Secretary of State for Scotland (1999) and Riordan Communications Ltd v South Bucks District Council (2000) the courts accepted that relatively small-scale works could still amount to commencement provided they form part of the approved development.

However, the works must still be genuine material operations connected to the permitted development.

The Works Must Form Part of the Approved Development

While the threshold for commencement is relatively low, it is important that the works undertaken are actually part of the development authorised by the planning permission.

Planning inspectors and courts will consider whether the works:

• correspond to the approved plans

• form part of the permitted scheme

• are more than trivial or insignificant.

The question is typically one of fact and degree. Simply carrying out unrelated works on the site will not be sufficient.

For example, if a permission is granted for a dwelling, works such as digging foundation trenches or constructing drainage runs associated with the building may qualify as commencement. However, unrelated landscaping or temporary works may not.

Demolition as Commencement

In some cases, demolition can count as the start of development.

If demolition is specifically authorised as part of the planning permission and forms part of the overall development works, it may constitute a material operation and therefore mark the commencement of development.

Planning inspectors will consider whether the demolition was:

• authorised by the planning permission; and

• carried out as part of the approved development scheme.

Where these criteria are met, demolition works may lawfully begin the development.

Commencement of a Change of Use

Development does not always involve construction. In planning terms, development can also include a material change in the use of land or buildings.

For developments involving a change of use, commencement typically occurs when the new use actually begins.

For example:

• if permission is granted to change a building from offices to residential use, development begins when the building starts being used as a dwelling

• if land is granted permission for use as a car park, commencement may occur when the land first starts being used for parking.

The key point is that the change in use must actually occur, rather than simply being planned or intended.

Commencement Does Not Necessarily Mean the Permission Has Been Implemented

An important distinction exists between commencement and implementation of a planning permission.

Although these terms are sometimes used interchangeably in everyday language, they have different meanings in planning law.

Commencement refers to the point at which development legally begins. Implementation, on the other hand, can refer more broadly to the carrying out or completion of the development.

The courts have recognised this distinction. In Fazal Hussain v Secretary of State for Communities and Local Government (2017), it was confirmed that development can be commenced for the purposes of the statutory time limit even if the development later deviates from the approved plans.

In other words, a developer may lawfully commence development before the permission expires, but later works may still give rise to enforcement issues if they depart from the approved scheme.

Pre-Commencement Planning Conditions

One of the most important issues relating to commencement is the role of pre-commencement planning conditions.

These are conditions attached to planning permissions which require certain matters to be approved before development begins. Common examples include:

• construction management plans

• drainage strategies

• landscaping details

• materials approval

• archaeological works

• ecological mitigation measures.

Where a condition expressly states that it must be satisfied prior to the commencement of development, it is known as a condition precedent.

The legal consequences of breaching such a condition can be significant.

In the leading case of F G Whitley & Sons v Secretary of State for Wales (1992), the court established what is now known as the Whitley principle.

This principle states that if development begins in breach of a condition precedent, it cannot be regarded as having lawfully commenced.

This means that even if a material operation has taken place, the development may still be treated as unlawful if the required pre-commencement conditions were not discharged beforehand.

For this reason, developers must always check that any required approvals have been obtained before beginning works.

Community Infrastructure Levy (CIL) and Section 106 Agreements

When development is commenced, it triggers certain financial obligations related to the Community Infrastructure Levy (CIL) and Section 106 planning agreements. Understanding these requirements is essential for developers to navigate the financial aspects associated with their projects.

1. Community Infrastructure Levy (CIL): Commencement of development typically necessitates the payment of the CIL, which is a charge imposed by local authorities to fund infrastructure projects in the community. To comply with CIL regulations, developers are required to submit a valid 'Commencement Notice' to the local authority. This notice informs them that development has started and triggers the assessment of CIL charges.

Failing to submit a Commencement Notice can have significant consequences. Developers may lose CIL reliefs or exemptions they might otherwise be eligible for, and additional surcharges may be imposed. It is crucial to adhere to the prescribed form and submit the notice in a timely manner to avoid such penalties.

2. Section 106 Planning Agreements: In some cases, planning permission may be granted subject to a Section 106 planning agreement. This agreement outlines additional obligations and payments that developers must fulfil upon the commencement of development. These obligations are typically related to mitigating the impact of the development on the local community, such as contributions towards affordable housing, education facilities, or transportation infrastructure.

It is essential to carefully review the terms of the planning permission and the Section 106 agreement to understand the specific obligations triggered by the commencement of development.

Multiple Planning Permissions on the Same Site

Another issue that sometimes arises relates to sites with multiple planning permissions.

It is legally possible for more than one planning permission to exist on the same piece of land at the same time. However, complications can arise if the permissions are incompatible.

In the case of Pilkington v Secretary of State for the Environment (1973), the court held that while multiple permissions can coexist, implementing one permission may make it physically impossible to implement another.

This principle has been reaffirmed more recently in the landmark Supreme Court decision Hillside Parks Ltd v Snowdonia National Park Authority (2022).

The Hillside case concerned a large residential development where later permissions deviated from an earlier masterplan. The court held that where later development makes it physically impossible to complete the original scheme, the earlier permission may no longer be capable of further lawful implementation.

This issue can be particularly relevant on large or phased developments where planning permissions evolve over time.

Proving That Development Has Commenced

In some situations, it may be necessary to demonstrate that development has been lawfully commenced before a planning permission expired.

To do this, developers should keep clear records of the works undertaken. Evidence may include:

• dated photographs of works on site

• contractor invoices

• engineer or surveyor reports

• construction records

• delivery receipts for materials.

In certain cases, it may also be possible to apply to the local planning authority for a certificate of lawfulness confirming that development has been lawfully commenced.

This certificate provides an official confirmation that the development has been lawfully implemented in accordance with the planning permission and relevant regulations. It offers peace of mind and clarity regarding the status of the project's legality.

This can provide useful certainty, particularly where the status of a planning permission may be questioned in the future.

It is important to note that the specific requirements for proving commencement and lawful implementation may vary depending on the nature of the development.

Common Mistakes Developers Make

In practice, disputes about commencement often arise due to misunderstandings about the rules. Some common mistakes include:

Starting works before discharging pre-commencement conditions

This is perhaps the most frequent issue. If a condition requires approval before development begins, failing to obtain that approval may invalidate the commencement.

Carrying out works that are not part of the approved development

Only works that form part of the permitted development can count as commencement.

Assuming minor site preparation is enough

Not all preliminary works will qualify as material operations.

Failing to keep evidence of the works carried out

Without evidence, it may be difficult to demonstrate that development began before the permission expired.

Why Professional Advice Is Often Needed

While the legal principles governing commencement may appear straightforward, their application in practice can be complex.

Questions frequently arise about:

• whether particular works constitute a material operation

• whether planning conditions prevent lawful commencement

• whether multiple planning permissions conflict with each other.

In many cases, the answer depends on the specific facts and circumstances of the development.

For this reason, it is often advisable to seek professional planning advice before carrying out works intended to commence a planning permission.

Final Thoughts on the Commencement of Development

Understanding what counts as commencement of development is essential for anyone involved in property development or land promotion.

Although the legal threshold for commencement is relatively low, it is important that the works undertaken genuinely form part of the approved development and comply with all relevant planning conditions.

Failure to follow the correct process can result in planning permissions expiring or development being considered unlawful.

Where there is any uncertainty about whether development has been lawfully commenced, it is sensible to seek professional planning advice to avoid potential risks and delays.

About me

Andrew Ransome is the planning director at ADP and is a chartered member of the RTPI, with over 22 years of town planning experience.

Andrew has extensive experience offering strategic planning solutions to challenging projects in both rural and urban settings. Follow him on Linkedin.

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