Posted: Friday, 21 November 2008 @ 12:58
If you currently own a development site with planning permission that is about to expire then you could be faced with a number of problems.
The first problem is that if the planning permission expires without the development being commenced then you will be the proud owner of a site you cannot develop without re-applying for planning consent. If planning policy has changed in the meantime you may find your application is refused.
The solution to this problem is to ensure you have carried out a 'material operation' which can include doing something as minimal as digging a trench to contain the foundations before the time for commencing development expires.
Before carrying out a material operation, it is vital you identify whether any conditions attached to the planning consent need to be discharged before development is commenced. Carrying out a material operation before all such conditions are discharged may make the whole development unlawful. The law in this area is currently quite confused - failure to discharge such a condition might be just treated as a breach of condition which does not render the whole development unlawful. The question you need to ask yourself is whether you wish to risk the legality of your whole development by failing to discharge those conditions before development is commenced.
Another problem is that carrying out some works to keep the permission alive may result in an unattractive partly developed site. The Local Planning Authority has the right to issue a completion notice where development has been started but where there appears to be no prospect of completion within a reasonable period. In such cases, the LPA may serve notice stating that the planning permission will cease within a minimum of 12 months.
A completion notice cannot be served until after the planning permission’s expiry date, and does not take effect until it is confirmed by the Secretary of State who will not make her decision until after there has been an opportunity for a hearing. If the notice is confirmed, and if the development is not completed within a minimum of 12 months, the planning permission ceases to have effect.
Whilst the completion notice does not affect the permission for any development carried out before the end of the time specified in the completion notice, any development carried out after that time will be without the benefit of planning permission, and may be liable to enforcement action.
It may be that Local Planning Authorities will be hesitant to serve completion notices due to the resources required and the complexity of the process. Developers should be aware of their power to do so though and its implications.
This is yet another trap for the unwary for already beleaguered developers and it's more important than ever to ensure you are constantly taking advice from a lawyer who isn't afraid to put on his wellies
Steven Petty, Commercial Property Lawyer
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