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What constitutes as build commencement


MikeGrahamT21
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So applied for planning last year, but wasn't ready to build til this year at earliest, and then the lack of builders put that to bed. I'm hoping to get going next year, but if for whatever reason that doesn't happen, that gives me a year left until i need to pay the council some more ££ which i'd rather not do if I can help it.

 

There is some timber cladding which was part of the planning permission, and I'm wondering if doing a section of that which can be completed would constitute as build commencement? Otherwise what else can I do? Dig a hole which would form part of the foundations?

 

All ideas welcome! Hoping this doesn't become an issue in reality tho

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https://www.fsp-law.com/planning-permission-and-commencement-of-development/

 



What constitutes “commencement”?

In order to lawfully ‘commence’ development it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. This says that “development is taken to be begun on the earliest date on which a material operation is carried out”.  A material operation can include any works of construction, demolition, digging foundations, laying out or constructing a road and a material change in the use of the land.

In practice, very minor works are usually sufficient to commence development. This could be as simple as putting in footings or even just pegging-out a roadway. Caution should be had though, as any works done must reflect what was actually permitted by the planning permission. This means crucially that any pre-commencement planning conditions must be complied with before works commence on site. Otherwise any works done to implement in accordance with section 56(4) may not be lawful and may then be subject to challenge by the local authority.

If the planning permission contains ‘pre commencement’ conditions which are not likely to be complied with before the date on which the planning permission would (but for implementation) expire, then in the alternative an application could instead be made to vary the planning condition.  This could be dealt with by way of a s.96a application (an application for a non-material amendment) to vary the wording of the relevant conditions to perhaps delay the date for compliance.

The CIL risk

Commencing development has become an even hotter topic in light of the Community Infrastructure Levy (“CIL”) because commencement of development triggers the requirement to pay any CIL. It is important to note that the CIL regulations also provide that before commencing development, a valid ‘Commencement Notice’ must be submitted. Crucially, such a notice must be in the form required by the regulations and so a simple email to the local authority will not suffice. Historically, failure to serve such a notice prior to commencement would have also resulted in any reliefs or exemptions from CIL being lost: this is no longer the case, but new surcharges do apply.

 

Some councils will tell you what they require you to do. In some cases this is digging foundation trenches, getting them inspected by Building Control and filling them. The problem is that you have to pay a fee to Building Control to get started and some will close a file if progress seems to have stopped.

 

If the council won't tell you then it is possible to do some work and apply for a certificate of lawfulness to determine you have officially started. Wind farm developers sometimes do this while they wait for the grid to be upgraded. Problem is the fee.  

 

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  • 6 months later...

HI Mike 

 

How did you get on?

 

What did you have to do? We are in a similar situation wanting to get commencement signed off / acknowledged by the council. 

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Hi,

 

I’ve managed to find a builder, though at present they haven’t started yet (were due beginning of month but are behind) so I’m hoping that this won’t be an issue for me as currently I’m not well enough to do any digging.

 

sorry can’t give any more help.

 

Mike

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