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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.

How to make planning extant - a material start


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 pre-commencement conditions. These must be complied with prior to making the planning extant. If you are certain that you do not have any pre-commencement conditions, you may jump down to the part on making the planning extant.

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.

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 you have not heard back within 6 weeks of the application to discharge the conditions you can serve a notice of ‘deemed discharge’. Once served, you must wait a further two weeks before making a start on site. In other words the full eight week period mentioned above.

You can’t use a deemed discharge on items such as flood risk, Environmental Impact Assessments (EIA), contaminated land, SSSIs and Section 106 agreements etc. These and a few others are defined in Schedule 6 of the DMPO 2015.

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
  • 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. Laying out a road might simply mean pegging the road width out. 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.

This is defined in Section 56 of the TCPA 1990

Once you have actually made the planning extant it is live for as long as you want it to be. This is why quite often you will see new developments with a small section of the access road constructed. The developer will return when they are ready.

There is however talk that legislation might change to put a time limit on this – that would only apply to new planning passed after such a change to legislation took place. If that happens, we will update this article.

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 you have CIL it is important that you submit all forms required before you make a material start on site. Otherwise you might be liable to a surcharge and other fines. Also if you wish to claim any sort of relief such as self-building or previous use of the building in the last 3 years you must do this before you start, Otherwise you will lose the right to this relief.  For more on CIL 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.

 

Extant planning page updated: 16th January 2024

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