How to make planning extant – a material start

 

You have your planning approved. Congratulations! But what about making a start on site or making the planning extant?

This article will take you through what you must do in order to make your planning extant or to make a material start. If you need any help with this please make contact for assistance.

 

 

The Decision Notice

The first thing you must do is to read the decision notice carefully. It is likely to say ‘This development must be begun within three years from the date of this permission.’ or similar words. Ensure you read the date of the decision as well. This is the date by which you must have made a material start.

Three years might sound like a long time, but this can creep up very rapidly.

Once you have checked and confirmed this date, you must look at the various conditions that the planning officer has kindly put against the decision notice.

As a general rule these will be broken down into the following..

• General Conditions that must be met in order to complete the build
• Pre-commencement Conditions
• Conditions during construction
• Pre-occupation Conditions
• Conditions on using the building
• Conditions on how you can alter the building
• Conditions after occupation

 

There maybe a few others, but the vast majority will fit into one of the above. Not all of these will apply to every decision.

It is important that you read each condition carefully, especially anything which restricts what can happen before development begins. Do not assume that carrying out a material operation will keep the permission alive if the work is done in breach of a condition which lawfully prevents commencement. Equally, not every condition containing the words ‘before development commences’ necessarily has the effect of making the whole start unlawful. The precise wording and purpose matter, as explained below.

However you may only need to do part of any pre-commencement conditions. For example it might say that a Construction Management Plan must be submitted and approved by the local authority before development starts. But it may also say that samples of the roof tiles must be submitted to the local authority before development starts. The big difference is that on the second condition, you can make a material start once submitted. You do not need to wait for approval.

A variation on pre-commencement might be that these are split into pre-development and pre-construction. Pre-construction might allow for demolition to take place, but pre-development would prevent anything from happening until conditions are met.

 

When does a condition stop a lawful commencement?

 

The starting point comes from F G Whitley & Sons Co Ltd v Secretary of State for Wales (1992) 64 P&CR 296. Work carried out contrary to conditions controlling commencement may fail to amount to the development authorised by the permission at all.

But the courts have warned against turning that into an automatic rule for every condition which happens to require something before work starts. In R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin), Sullivan J drew an important distinction. A condition may require something to be done before commencement without necessarily going to the heart of the planning permission. A breach of such a condition may be enforceable as a breach of condition without making every operation on the site development without planning permission.

The Court of Appeal considered the issue again in Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908. There, a condition clearly prohibited any work on the site until ground-floor levels had been agreed, and the Inspector was entitled to regard those levels as fundamental to the development. Access works undertaken before compliance therefore did not lawfully commence the permission.

Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983 adds a further practical warning. The developer had begun work in breach of conditions and argued that the council’s conduct over a number of years gave it a legitimate expectation that the permission would be treated as validly commenced. The Court of Appeal rejected that case. Planning is a statutory public-law system involving third-party and public interests, so the circumstances in which informal council conduct can override the proper statutory route are exceptionally narrow. If a condition needs varying or discharging, use the formal planning mechanism rather than relying on an officer’s apparent acceptance that work may proceed.

The practical message is not to gamble. Before relying on a start to preserve a permission, identify every condition affecting commencement and ask:

• does the condition clearly prohibit the start of development or work until something has happened
• is the requirement fundamental to, or at the heart of, the development authorised
• has the condition actually been complied with, including any required written approval
• is there a recognised legal reason why apparent non-compliance would not prevent a lawful start

If there is doubt, resolve it before the expiry date rather than discovering years later that the permission was never lawfully commenced.

Once you have identified how each condition affects the build or conversions etc., make a start on any pre-commencement conditions.

Pre-commencement conditions should be dealt with promptly and within 8 weeks. A fee is payable for these. If the conditions have not been discharged within 12 weeks, the local authority must return the fee (not applicable to prior approval or reserved matters). The fee is per application for discharge rather than per condition. Multiple conditions can be dealt with together.

Failure to make the conditions extant and to make a material start by the date in the decision notice could well mean that your planning will lapse. Don’t miss that deadline.

 

Deemed Discharge

 

If the council goes silent on your application to discharge conditions, you are not stuck. Once 6 weeks have passed you can serve a notice of ‘deemed discharge’, after which the condition can be treated as discharged without the council ever deciding. It does not work for everything – flood risk, Environmental Impact Assessments (EIA), contaminated land, SSSIs and conditions requiring a Section 106 agreement are among those excluded by Schedule 6 of the DMPO 2015.

The mechanics matter, because the date the discharge takes effect is the later of the end of the eight week period or 14 days after the council receives your notice – not simply two weeks from whenever you serve it. See our guide to discharge of conditions for the full procedure and the exclusions.

 

Making the planning extant!

 

Once you have discharged any pre-commencement conditions, you can now look to make a material operation / start on the site or to make it extant. It is vital that these are actually dealt with as otherwise anything you do now will not make it extant.

According to legislation, making a material start would be defined as any of the following material operations:

• Any work of construction in the course of the erection of a building
• Any work of demolition of a building (where demolition is authorised by the planning permission)
• 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 that is to contain part of the foundations
• Any operation in the course of laying out or constructing a road or part of a road
• Any change in the use of any land which constitutes material development

 

To be material, an operation must be more than de minimis (i.e. more than negligible). 

In all honesty there is a pretty low threshold for making planning extant. In Malvern Hills District Council v Secretary of State for the Environment and Robert Barnes & Company Ltd [1982] JPL 439; (1983) 46 P&CR 58, the Court of Appeal by a majority upheld the inspector’s conclusion that accurately pegging out the line and width of part of the approved estate road amounted to an operation in the course of laying out a road. However we would recommend perhaps digging a trench either for the foundations or for a pipe to the edge of the foundations. Note that a trench for the pipe away from the foundations would not be sufficient. Also the digging of a trial pit would also not be sufficient. Maybe an outbuilding needs to be demolished in order for the build to take place? Make sure any demolition is shown clearly on the plans. 

This is defined in Section 56 of the TCPA 1990

Once a planning permission has been lawfully commenced within its time limit, it will not normally lapse simply because work then pauses. This is why you sometimes see a small but genuine part of an access road or foundation works completed before a site goes quiet for years.

 

Can an extant planning permission be abandoned?

 

Not in the same way as a lawful use of land. Our guide to abandonment of use explains when a lawful use itself can be lost. In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, the House of Lords rejected the idea that a planning permission which continues to benefit the land can simply be abandoned because the owner stops work or no longer intends to use it. That is different from the common-law doctrine of abandonment of a use.

But “extant” does not mean that every part of an old permission can always be completed regardless of what happens later. In Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30, the Supreme Court confirmed that where later development on the same land makes it physically impossible to carry out an earlier permission as granted, further development under that earlier permission can become unlawful.

Hillside builds on the much older decision in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527. In Pilkington, implementing a later permission for one bungalow made it physically impossible to carry out an earlier permission which contemplated a different bungalow and use of the remainder of the same land as a smallholding. The modern point is not that granting a new permission automatically cancels an old one. It is that once development actually carried out under one permission makes the authorised scheme under another permission physically impossible to complete, further implementation of the inconsistent permission is no longer lawful.

So an old permission may still exist, but you must check whether it was lawfully commenced, whether its conditions have been complied with, and whether later permissions or development have made the remaining scheme impossible to carry out. If several permissions overlap on the same site, do not assume they can simply be mixed and matched.

 

Confirming that planning is extant

 

Where a site was started many years ago, it can be risky to rely only on old photographs, building control records or an informal email from the council. A certificate of lawfulness of existing use or development under section 191 of the Town and Country Planning Act 1990 can be used to ask the local planning authority to confirm that the operations carried out lawfully commenced the planning permission and, where appropriate, that the remaining approved development can be lawfully completed. If granted, it gives formal written confirmation of the planning position rather than leaving the issue to be argued later.

The same approach can be sensible on a more recent site where work is likely to pause, particularly before a sale, refinancing or a lengthy delay. The application should be supported by clear dated evidence showing exactly what was done, when it was done and how it relates to the approved plans; this might include photographs, invoices, contractor statements, surveys and building control records. A certificate is not a new planning permission and does not discharge outstanding conditions, so the development must still comply with the permission and any conditions or limitations attached to it. Planning Geek can help prepare the application and evidence if written confirmation is important.

One important qualification is the statutory completion notice regime. Under the current sections 94 to 96 of the Town and Country Planning Act 1990, a council can in appropriate circumstances seek to bring an unfinished permission to an end where development has begun but is not being completed within a reasonable period. So a lawfully commenced permission does not simply expire because work pauses, but neither should an old extant permission be treated as completely immune from later statutory action.

If you need any assistance in getting your conditions discharged, please ask us for a fee proposal. We are experienced at ensuring that these conditions are dealt with correctly.

 

Community Infrastructure Levy

 

If the development is liable for CIL, sort out the CIL position before making a material start. The required commencement procedure matters, and some exemptions or reliefs, including self-build relief, can be lost if the development is commenced before the relevant CIL steps have been completed.

Existing-building floorspace is a different issue from relief. Where the statutory test is met, floorspace in an existing building can reduce the chargeable amount. For floorspace that is being demolished or lost through a change of use, the building or relevant part generally needs to have been in lawful use for a continuous period of at least six months within the three years ending on the day planning permission first permits the chargeable development. Keep the evidence of that lawful use. For the full calculation and procedure see our CIL section and CIL FAQ.

Ensure that you have all the ducks in order when you first get the approval. Set deadlines in the diary at the start, These dates soon come around.

 

Other Planning Application Sections

 

Extant Planning Page Updated: 30th August 2026