The grant of a planning permission is a potentially valuable right. The existence of an unimplemented planning permission however can cause uncertainty and therefore one of the changes made in terms of the Planning Act in Scotland 2006 was to reduce the duration of a full planning permission from 5 years to 3 years "unless the development to which the planning permission relates is begun before that expiration". While the planning authority in granting planning permission may vary the 3 year period, the norm is simply to work on the basis of 3 years. Separate provisions apply in terms of Section 59 of the Town & Country Planning (Scotland) Act 1997 (as amended by the 2006 Act) in respect of planning permission in principle (formerly outline planning permission). Again the relevant provisions apply "unless the development to which the permission relates has begun before" the expiration of the relevant period.
With a view to trying to provide greater certainty the 2006 Act also made provision for the developer to give a notice when development is to be initiated (see Section 27A) and when completed (see Section 27B).
One obvious way to maintain the life of a planning permission (whether a detailed planning permission or planning permission in principle) is to begin the development. Accordingly whether or not the development has begun has been the subject to considerable case law in the past. In particular the courts have had to consider whether operations carried out were carried out with the intention of carrying out or completing the development or done simply to keep the permission live. There is older English authority which suggests that while little need be done but "that which is done, however, must genuinely be done for the purpose of carrying out the development" (see Malvern Hills District Council v The Secretary of State for the Environment 1983).
In Scotland this approach has not been followed. In East Dunbartonshire Council v The Secretary of State for Scotland and Mactaggart & Mickel Limited (1999) Lord Coulsfield in the Inner House (the Court of Appeal) held that it was not desirable to try and impose any additional requirements over and above those found in the legislation. In his view, when giving the decision of the court, what was required was simply to demonstrate that what had been done was in conformity with the planning permission (and little needed to be done to comply with the relevant statutory provisions) and the issue of intention was not relevant. This approach was subsequently adopted in England in a case of Riordan Communications Limited (2000) IP.L.R.45.
The relevant statutory provisions are found in Section 27 of the 1997 Town & Country Planning (Scotland) Act. Sub-section 1 sets out that in relation to physical development the development is taken to be initiated when the operations are begun and while the development consists of a change of use development is initiated when the new use is instituted. In relation to carrying out operations sub-section 2 provides that development will be taken to have begun "on the earliest date on which any material operation comprising the development begins to be carried out". "Material operation" is then defined in sub-section 4 and the nature of the works required is, as Lord Coulsfield pointed out in the East Dunbartonshire case, very little – for example digging of a trench to contain foundations or part of the foundations of the building may be sufficient (providing that trench is referable to the planning permission).
One issue which has caused complications in the past is what the position is if material operations have occurred or new use has been initiated but conditions attached to the planning permission (which called for matters to be addressed prior to any start) have not been complied with. Looking at it another way, has there been "lawful" commencement of the planning permission. If not it was thought that even though material operations had occurred or new use had been initiated if done in breach of a condition that might not be sufficient to validly commence development and keep the planning permission alive.
This issue has been considered by the courts both in Scotland and in England recently and appears that the thinking may have been refined. Both cases concern change of use type cases but there appears to be no reason in principle why the decision of the courts north and south of the border should not apply equally to cases involving physical development.
The English case is Bedford Borough Council v The Secretary of State for Communities & Local Government decided on 20 August 2008 (2008 EWHC 2304). In this case (which concerned a Certificate of Lawful Use of Development) planning permission had been granted for the conversion to a dwelling of a barn. The planning permission was subject to conditions. Apart from the time limit within which the planning permission had to be commenced there were requirements for a landscaping scheme to be provided and boundary treatment details to be provided both before the development commenced. Neither condition said in terms however that "no works in connection with the development shall take place until" – a formulation that is sometimes used.
An issue arose about whether or not the relevant conditions had been complied with and the owner of the property sought a Certificate of Lawful Use. The Council refused the Certificate but on appeal an inspector granted a Certificate. The case concerned a challenge to the decision of the inspector.
The judge having analysed the various cases came to the view that the approach of the inspector was correct and that neither of the conditions was "a condition precedent" sufficient to preclude a lawful commencement of development even although the conditions had not been complied with at the time the development commenced or was initiated. In this case the development was a change of use so in effect the relevant date was when the new use was initiated. It was not disputed that the new use has been initiated within the relevant time limited (5 years) attached to the permission. The argument quite simply was that that change of use was not a lawful change of use because the conditions had not been complied with prior to the change of use, an argument that was rejected.
Similar issues have been considered before the Scottish Courts in the case of Doonin Plant decided by Lady Clark on 13 January 2011. This case concerned an enforcement notice which had been upheld by a Reporter. The case before Lady Clark was the challenge to the validity of that enforcement notice.
Again in this case there was a change of use, this time from a milk bottling/distribution depot to a depot for recycling waste materials. Planning permission was granted subject to conditions. While various grounds of appeal had been taken against the decision of the Reporter only one was before the courts and that concerned whether or not the planning permission had been lawfully implemented and therefore whether a breach of planning control had occurred.
Lady Clark decided that the consideration of matters by the Reporter was flawed and therefore quashed the decision of the Reporter with the consequence that matters required to be reconsidered by Scottish Ministers.
Lady Clark referred to the Bedford case in her decision and accepted the distinction made by the judge in that case depending upon the wording of conditions. The consequence of that was that some conditions are truly conditions precedent compliance with which is necessary before a lawful commencement can take place while others (even though they may require certain information to be provided prior to development) are not conditions precedent such as to be of that effect. The failure to comply with these may be subject to enforcement proceedings (whether by way of an enforcement notice or breach of conditions notice would depend upon the particular cases) but did not preclude a lawful start.
These decisions may be of benefit to parties who wish to argue that a lawful start has taken place. While both cases relate to change of use there appears to be no reason why the principles should not apply equally to cases involving physical development. Local authorities may wish to consider how they word conditions if they truly want to ensure that certain steps are truly conditions precedent to the commencement of development. In however deciding what conditions to apply they need to bear in mind the guidance given by Scottish Ministers in respect of the legal basis for conditions and their wording (that guidance being found in Circular 4/1998).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.