How to make planning extant: a material start

 

You have your planning approved. Congratulations! But what about making a start on site and keeping that permission extant?

Extant means still in existence. A permission can be extant before any work begins. Here, “making planning extant” means making a lawful start in time to prevent expiry under its commencement condition; it does not guarantee that the whole scheme can always be completed.

This guide explains a lawful material start, the conditions to check and how to prove what was done. It also covers planning permissions granted before 1990, including the different deadlines which can affect an old decision. The current procedures described are for England unless stated otherwise.

If you need help checking a recent or historic permission, contact Planning Geek for advice.

 

 

Read the decision notice first

 

The first thing to check is the decision notice. Record the date of the permission and calculate the last day for a lawful start from the actual wording of its time-limit condition, allowing for any applicable statutory provisions. The grant date and the commencement deadline are not the same thing.

A modern full permission in England will often allow three years under section 91 of the Town and Country Planning Act 1990, but a different period can apply. An outline permission has separate requirements for reserved matters and commencement. Older permissions need particular care: the usual period was once five years, and some earlier permissions acquired deadlines through legislation even where the notice said nothing about time.

Dealing with an old decision? Go to planning permissions granted before 1990 below. Do not apply today’s usual deadline to a permission from the 1960s or 1970s.

Next, read every planning condition. The requirements may relate to:

• Things which must happen before development begins
• Details or approvals needed during construction
• Requirements before occupation or first use
• How the completed building or land may be used
• Restrictions on future alterations
• Continuing obligations, such as maintaining planting

Read the wording, rather than relying on a heading such as “pre-construction”. For example, a condition requiring details to be submitted and approved before work starts is different from one requiring only submission before that point. Do not assume approval is unnecessary unless that is what the whole condition actually means.

Likewise, a condition may expressly allow demolition or other identified works before an approval is obtained. That exception must come from the permission itself, not from an assumption about what “construction” means.

Not every commencement restriction will appear as a numbered condition on the notice. Where statutory biodiversity net gain applies in England, paragraph 13 of Schedule 7A requires a biodiversity gain plan to be submitted and approved before development begins. Check whether the development falls within the regime or an exemption.

That condition is not retrospectively imposed on an old permission simply because work starts or resumes today. The transitional provisions exclude planning permissions applied for before 12th February 2024. A later fresh or amended permission needs its own check.

 

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 that is not an automatic rule for every condition requiring something before work starts. In R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin), Sullivan J distinguished a requirement to do something before commencement from a condition going to the heart of the permission. A breach may be enforceable as a breach of condition without making every operation development without planning permission.

In Greyfort Properties Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 908, a condition prohibited any work on the site until ground-floor levels had been agreed. 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 gives a further warning. The developer could not rely on the council’s informal conduct to overcome its failure to comply with conditions through the proper statutory process. If a condition needs varying or discharging, use the formal route rather than an officer’s apparent acceptance that work may proceed.

Before relying on a start to keep planning extant, identify every condition affecting commencement and ask:

• Does it prohibit development or particular works until something has happened
• Is the requirement fundamental to the development authorised
• Has it been complied with, including any necessary approval
• Is there a recognised legal reason why apparent non-compliance would not prevent a lawful start

Do not gamble on the answer. Deal with the relevant requirements before the deadline and keep the approvals with the decision notice. Our discharge of conditions guide explains the application process, timescales and fees.

 

Deemed discharge

 

For an eligible condition, the deemed-discharge procedure can help where the council has not decided an application for approval. But silence alone is not approval. There must be a qualifying application, a valid notice and compliance with the statutory timing requirements.

For an older permission, there is a firm cut-off: under article 47(5) of the DMPO 2015, this procedure does not apply where the application for the original planning permission was made before 15th April 2015. Making a condition-discharge application today does not bring an old permission within the procedure, nor does it retrospectively discharge a condition which should have been met decades ago.

There are also important exemptions for otherwise eligible permissions. See our deemed discharge of conditions guide before relying on the procedure.

 

Making planning extant with a material start

 

Once the requirements for a lawful start have been met, the next question is what you actually do on the land. The operation must be part of the development authorised by the permission. Unrelated works elsewhere on the site do not become a commencement simply because you also have planning permission.

Section 56 of the 1990 Act provides for development to be taken as begun when a material operation comprised in it begins. Its list covers:

• Construction work in the course of erecting a building
• Demolition of a building, where it forms part of the authorised development
• Digging a trench which is to contain all or part of a building’s foundations
• Laying an underground main or pipe to foundations or a foundation trench
• An operation in the course of laying out or constructing a road or part of a road
• A change of use which constitutes material development within the statutory definition

The works must be more than de minimis, meaning negligible. There is no universal minimum length of trench or amount of concrete which proves that every permission has been commenced.

The threshold can be low. 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 an approved estate road amounted to an operation in the course of laying out a road.

Even so, choose an operation which can be clearly identified against the approved drawings. A genuine foundation trench is different from a trial pit. Simply digging a service trench is not the same as laying the underground main or pipe described in section 56(4)(c). Do not rely on generic site clearance without checking precisely what was authorised and what legal test it meets.

Take dated photographs before work is covered over, record measurements and locations, and retain invoices and inspection records. Making planning extant is much easier to demonstrate when the evidence is collected at the time.

Once a permission has been lawfully commenced within its applicable time limit, it will not normally lapse simply because work pauses. That does not remove its other conditions or guarantee that every remaining part can be completed regardless of later events.

 

Planning permissions granted before 1990

 

An old planning permission is not automatically unusable just because it predates the 1990 Act. Equally, its age does not prove that it remains extant. You need to establish which rules applied, what deadline had to be met, and what happened on the land.

The important date for the introduction of general statutory commencement deadlines is 1st April 1969, not 1990. That is when sections 65–67 of the Town and Country Planning Act 1968 came into force under the 1968 Act’s Commencement No. 4 Order 1969. The historical provisions discussed here applied to England and Wales; current procedures and deadlines are not necessarily the same in both countries.

Permissions granted before 1st April 1969

Before the general regime began, some councils imposed time limits and others did not. This history is explained at paragraphs 3–8 of Barry Field v First Secretary of State and Crawley Borough Council [2004] EWHC 147 (Admin).

However, no printed time limit does not necessarily mean an unlimited permission. Under section 65(1) of the 1968 Act, qualifying earlier permissions acquired a deemed deadline where development had not begun before the beginning of 1968. For an ordinary full permission within that provision, development had to begin by 31st March 1974.

There were exceptions. In particular, section 65 did not replace an earlier permission’s express condition requiring commencement or completion by a specified date or within a specified period. Permissions granted by development orders, temporary permissions and certain retrospective permissions were also excluded. The actual notice and the relevant statutory exception must be checked.

Section 66 dealt separately with earlier outline permissions. For those within its transitional rule, where development had not begun before the beginning of 1968, reserved-matters applications generally had to be made by 31st March 1972. Commencement was required by the later of 31st March 1974 or two years after final approval of the reserved matters.

That transitional rule did not apply where the earlier outline permission already had an express deadline for commencement, completion or applying for approval of reserved matters. Finding an old outline notice is therefore not enough: obtain the details approvals and the correspondence too.

These older-permission provisions were carried into paragraphs 18–21 of Schedule 24 to the 1971 Act. The continuing effect of the relevant savings was preserved by paragraph 3 of Schedule 3 to the Planning (Consequential Provisions) Act 1990.

What about a permission granted in 1970?

A 1970 permission was granted under the 1962 Act framework as amended by the 1968 Act. For an ordinary full permission, section 65 normally required commencement within five years, unless the authority imposed a different period. If the required condition was omitted, the five-year condition was deemed to apply.

The usual deadline for that sort of 1970 permission would therefore fall in 1975, not 1973. Calculate the exact last day from the grant date and wording; do not assume every permission allowed exactly five years.

For a 1970 outline permission, section 66 normally required reserved-matters applications within three years. Development had to begin by the later of five years from the outline grant or two years after final approval of the reserved matters. Different periods could be imposed, including arrangements for separate parts of the development.

Be careful about the document you have found. A decision dated 1970 might approve reserved matters under an earlier outline permission rather than grant a new permission. Read it alongside the original outline decision.

The 1971 and 1990 Acts did not restart the clock

The five-year regime continued in section 41 of the 1971 Act, with outline permissions addressed by section 42. Even section 91 of the 1990 Act as originally enacted provided for five years.

Section 2 of the Planning (Consequential Provisions) Act 1990 expressly preserved continuity of the law. The replacement of earlier legislation did not cancel a valid extant permission or give an expired permission a fresh starting period.

The later reduction from five years to three in England was made by section 51 of the Planning and Compulsory Purchase Act 2004, brought into force on 24th August 2005 by the Commencement No. 5 Order. Section 51(6) links the change to when the application was received, not simply the date on which permission was granted. Existing permissions were not retrospectively shortened. Check the application date and actual condition for decisions around that change.

What counted as starting an older permission?

The earlier legislation used the expression “specified operation”. Section 67 of the 1968 Act adopted the definition in section 64(3) of the Land Commission Act 1967, reproduced in paragraph 4 of Field. It was subsequently set out in section 43 of the 1971 Act.

The list covered construction in the course of erecting a building, foundation trenches, certain underground mains or pipes leading to foundations or foundation trenches, operations laying out or constructing roads, and qualifying changes of use. The operation had to be comprised in the authorised development.

Both the date of the permission and the date of the claimed start matter. Do not simply apply today’s list to work said to have taken place decades earlier.

Could demolition commence an old permission?

Demolition was not expressly included in the earlier list as it is in today’s section 56. But it would be wrong to conclude that demolition could never commence an older permission.

In Field, outline permission was granted in 1967 for demolition of four cottages and their replacement with bungalows. Detailed plans were approved that year. The cottages were demolished between January 1969 and November 1970, but the bungalows were not built.

The High Court held that the statutory list was not exhaustive. On the facts found by the Inspector, the authorised demolition was itself development and had begun the permitted scheme before the relevant deadline. The court quashed the decision dismissing the certificate appeal; it did not itself issue a certificate.

Read paragraphs 31–45 of the full Field judgment. This was not a ruling that demolition is construction, nor a blanket rule that any demolition or site clearance keeps an old permission alive. What the permission authorised, what the works amounted to and how they related to the approved scheme remain crucial.

The judgment also warns against speculating decades later about a previous owner’s motives. Focus on the permission and evidence of the operations carried out, rather than trying to reconstruct whether the owner intended to finish everything immediately.

 

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 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 continuing to benefit the land could simply be abandoned because the owner stopped work or no longer intended to use it.

But “extant” does not mean that every part of an old permission can always be completed regardless of later events. In Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30, the Supreme Court confirmed that later development making it physically impossible to carry out an earlier permission as granted can prevent further lawful development under that permission. Material departures matter; not every minor deviation has that effect.

Hillside builds on Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527. The point is not that granting a new permission automatically cancels an old one. What has actually been built, and whether the authorised scheme can still be carried out, are central.

For a single, non-severable permission with one commencement deadline, a lawful qualifying operation comprised in the development can normally commence the permission as a whole. Each building does not necessarily need its own separate start. That follows from the commencement test in section 56; it is not a licence to ignore reserved matters or conditions affecting later work.

Check whether the permission authorises one overall scheme, separate severable developments or expressly defined phases with their own requirements. Starting one part does not, without examining the permission, settle every question about what can still be built elsewhere. The discussion of multi-unit development in Hillside, particularly paragraphs 46–55 and 68–72, explains why an integrated scheme cannot simply be treated as a collection of independent permissions. Do not assume that overlapping permissions can be mixed and matched.

Also check for statutory action affecting the permission, including revocation, modification and completion notices. A lawful start normally prevents expiry through the original commencement condition, but does not make an unfinished permission immune from the statutory completion-notice regime.

 

Do differences from the approved plans always mean permission was not implemented?

 

No. The differences must be assessed for their planning significance, individually and together, against the permission read as a whole. A measured discrepancy is evidence to examine, not an automatic legal answer.

In the Marshwood appeal in Exmoor, the cabin was about 6.6 metres from its approved position and the footprints overlapped by just under 27%. Nevertheless, the Inspector found no significant planning consequences from the deviations and concluded that the 2011 permission had been implemented. Its agricultural occupancy condition therefore remained effective.

The decision illustrates fact and degree; it does not create a permitted tolerance for moving buildings. Nor does it replace the court authorities above. In another setting, a smaller change could materially affect neighbours, landscape or other planning considerations.

 

Proving an old permission was lawfully commenced

 

“Someone started it years ago” is a reason to investigate, not proof that planning remains extant. Build a chronology which connects the particular permission to the particular works.

• Obtain the full decision notice, approved plans and any incorporated amendments or correspondence
• For outline permission, obtain the reserved-matters applications and approvals
• Identify the applicable deadline and the conditions affecting lawful commencement
• Establish exactly what was done, where it was done and when it happened
• Check later permissions, development, notices and changes to the site

Useful evidence may include dated photographs or aerial images, building-control inspection records, contractor invoices, surveys and statements from people with first-hand knowledge. A building-control approval is not, by itself, proof that work took place. An inspection record may be more useful, but still needs to be tied to the approved development.

Ask for the archived file where the online planning register is incomplete. A faint scan of one notice may omit the very drawing or approval needed to resolve the question.

The applicant needs to establish the historic facts on the balance of probabilities: that the claimed events are more likely than not to have happened. Evidence should be precise about the works and dates. The council should co-operate in providing records it holds, but a missing council file does not itself prove lawful commencement.

 

Confirming that planning is extant

 

A lawful development certificate can provide formal confirmation, but the application must ask the right question. It is a decision about the facts and relevant planning law, not a fresh assessment of whether the old scheme would be desirable under today’s planning policies.

A certificate of lawfulness of existing use or development under section 191 concerns the existing position. It can address the lawfulness of operations already carried out, with the reason for lawfulness and the scope of the certificate carefully identified.

Where the question is whether the remaining approved development can now be completed, a certificate of lawfulness of proposed development under section 192 may be the appropriate route. This was the type of application made in Field.

A finding that some old works are lawful because enforcement is time-barred is not the same as establishing that those works lawfully commenced the original permission. Do not treat a certificate about existing works as automatic approval for an unbuilt remainder.

Government guidance on lawful development certificates recognises that a certificate may be based on an extant planning permission. The relevant conditions and limitations still need to be respected, except to the extent specifically addressed by the certificate. A certificate is not a new planning permission or a general discharge of conditions.

Nor does it replace other approvals which may be needed. Building regulations, listed building consent and other applicable licensing or permitting requirements remain separate matters, even where the planning permission is extant.

This can be useful before a purchase, sale, refinancing or return to a long-dormant site. Planning Geek can help assess the evidence and prepare the certificate application. Establishing the position before work resumes is much better than having to argue about it afterwards.

 

Community Infrastructure Levy

 

If the development is liable for Community Infrastructure Levy (CIL), sort out the position before making a material start. The required commencement procedure matters, and exemptions or reliefs can be lost if development begins before the relevant steps have been completed.

An old permission does not become liable to CIL simply because work resumes today. For an ordinary full permission granted before the relevant charging authority had a charging schedule in effect, regulation 128 prevents liability to that authority’s levy arising under that original permission. A later fresh permission or section 73 permission needs a separate CIL check.

Keeping planning extant and complying with CIL are separate issues. See our CIL commencement guide for the levy rules. Any deduction for existing-building floorspace is a separate calculation issue, not an exemption simply obtained by starting work; our CIL FAQ explains the wider requirements.

Get the conditions, evidence and any CIL requirements in order before the deadline. If you need advice on making planning extant or checking an old permission, contact Planning Geek.

 

Other Planning Application Sections

 

Extant Planning Page Updated: 11th September 2026