At a time when political focus is on the actual delivery of development projects, sadly much of our time as planning lawyers is still spent on keeping planning permissions alive ready for some future time when the particular project may be viable or otherwise able to proceed.
Planning permissions take an age to secure. My 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? referred to the May 2025 Lichfields research work How long is a piece of string? which found that the average determination period for outline planning applications for ten or more dwellings in 2024 was 783 days (up from 284 days in 2014).
So, maybe two or three years after scheme design freeze, the developer achieves its planning permission. By which time the market and/or technical requirements may have changed. If a full planning permission it may well have the default implementation deadline of three years, failing which it will lapse. If an outline planning permission it may well have the default reserved matters submission deadline of three years and a default implementation deadline of the later of five years from grant and two years from the last reserved matters approval to be secured.
The Planning and Compulsory Purchase Act 2004 tightened the screw on developers in two ways: first by removing the ability to use section 73 applications to extend the deadline for implementation and the submission of reserved matters applications (subject to temporary extensions first allowed for in the wake of the financial crisis and secondly in the light of the Covid pandemic) and secondly by reducing the default implementation deadline to three years from five.
I would argue that those measures have not served to increase or speed up the delivery of development, nor has it cleared the system of planning permissions which are no longer ever likely to be built out. All it has done is increase the extent to which developers, when they are not ready to proceed with development, are driven to carry out a limited implementation strategy simply to keep the planning permission alive.
After all, relatively minor works pursuant to the planning permission may serve to keep it alive; a list of “material operations” is included in section 56 of the Town and Country Planning Act 1990:
“(a) any work of construction in the course of the erection of a building;
(aa) any work of demolition of a building;
(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);
(d) any operation in the course of laying out or constructing a road or part of a road;
(e) any change in the use of any land which constitutes material development.”
However, care is needed, because the works carried out must not be in breach of any pre-commencement conditions on the planning permission (unless particular exceptions apply that have been established by case law). Often therefore, prior to works being carried out, it will be necessary to discharge various conditions or to vary them so as to allow for the implementation works to be carried out pre-discharge.
The Building Safety Act has given rise to an additional complexity in the case of “higher-risk buildings”, namely (in basic summary) buildings that are to contain at least two residential dwellings and which are either at least 18 metres in height or at least seven storeys. Under regulation 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, works can’t start to construction until building control approval has been secured, meaning that what may have been a straight-forward implementation strategy – perhaps digging a trench for part of the foundations of the building – may need to be ruled out given the current delays in the Building Safety Act gateway checks processes. (What is and isn’t determined to be a start to construction is left a little hazy, given that HSE guidance states that “carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work“).
Thought will also need to be given to whether the implementation works trigger any onerous section 106 agreement obligations, bearing in mind that the agreement is likely to have excluded certain types of preliminary works from the definition of “commencement of development” in the agreement.
If the scheme is in an area where a CIL charging schedule is in effect, thought will also need to be given to the extent to which a community infrastructure levy payment is triggered and for how much: is this a phased permission where CIL for the relevant phase will be triggered, or will these limited works trigger payment of CIL for the entire development?
Lastly, how to have a document trail that can be relied upon in the future to demonstrate that the planning permission has been kept alive? There are well-trodden strategies for securing a certificate of lawfulness under section 191 or 192 of the 1990 Act (the two processes entail different strategies, with different risks and indeed even sometimes very different application fees).
Does it all have to be quite like this? What public policy purpose is served? I was interested recently to learn that in Northern Ireland, for instance, the position is different:
First, rather than the long list of material operations within section 56 of the 1990 Act, section 63 (2) of the Planning Act (Northern Ireland) 2011: “development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—
- where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;
- where the development consists of or includes alterations to a building, any work involved in the alterations;
- where the development consists of or includes a change of use of any building or other land, that change of use;
- where the development consists of or includes mining operations, any of those operations.”
Decisions of the Planning Appeals Commission in Northern Ireland have determined that for instance the laying out of an access or the digging of a trench is not sufficient to meet this test.
Secondly, there is a specific procedure in Northern Ireland for renewing planning permissions: Regulation 3 of the Planning (General Development Procedure) Order (Northern Ireland) 2015 , with Department for Infrastructure advice as follows:
“As a general rule, such applications should be considered and refused only where: (a) there has been some material change in planning circumstances since the original permission was granted (e.g. a change in some relevant planning policy for the area, or in relevant highway considerations, or the publication of new planning policy guidance, material to the renewal application); (b) continued failure to begin the development will contribute unacceptably to uncertainty about the future pattern of development in the area; or (c) the application is premature because the permission still has a reasonable time to run. This is not an exhaustive list and each application must be considered on a case by case basis.”
Is this a better approach? What do we think?
Simon Ricketts, 7 September 2025
Personal views, et cetera
SIMONICITY 