Commencement of development for planning purposes

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    Commencement of development for planning purposes

    Sorry - this is quite long and fairly technical. I have a development on which we consider ourselves to have commenced works but the planning authority claim we have not.

    Firstly, the proposed building is in part earth sheltered and excavated into a hillside. We have carried out pretty much all the excavation and set the soil aside on site for back filling. More than 95% of the excavation totalling about 500cu.m has been removed although we have had to stop short of completing the final few cm as this may disturb nearby foundations of the original structure being retained and will have to be completed in sections by another contractor. Planning say that, because it is not clear whether we have started excavating the foundations (flat bottomed structural slab) we are not deemed to have started. I know that it is well established that the material operations for commencement are not limited to those listed in the 1990 Act but does anyone know of any examples where extensive excavations have been deemed to be more than site preparation?

    Secondly, we have laid parking and turning areas to the access road as required by planning and as detailed on the proposed site plans submitted with the approved application. Even though these are both immediately next to the building, and serve only that building, and building a road or part of a road is deemed to be a material operation, planning are saying that the works are not within the red marked application boundary so do not count. Is this correct?

    Thirdly, the application under which we commenced building was the last of three similar applications. No new 'existing' drawings were submitted with that application but the cover letter sent with the application stated that the architect understood that the structural survey of the existing buildings submitted with the earlier applications (with references) would suffice and that if any further information was required, to let him know (this arrangement was also accepted on the second of the three applications). Planning are holding that the demolition of part of the building which is to be replaced with a new structure does not constitute commencement because the demolition is not expressly referred to on the 'proposed' drawings. They accept that demolition can be implied by comparison between existing and proposed drawings but will not consider the earlier survey specifically referenced in the cover letter as showing what was 'existing' for the purpose of this application - even though no other existing drawings were submitted or requested at the time. Surely the survey of the existing buildings has to be considered?

    The planning officer seems to be taking every opportunity to doubt that we genuinely commenced work, right down to saying that it looks to her like we had excavated more than was required for the build, apparently suggesting that we have done it for some other purpose. I have even explained that the next contractor is on hold pending their decision. I am pulling my hair out!

    Any suggestions, and in particular any case studies beyond Field v Crawley [2004], will be gratefully received.
    Assume I know nothing.

    This sounds like an incredibly complex case, which crosses a number of permissions, involve changes to the site size and area and involves varied material operations, as well as building, so it is a bit hard to comment.

    All I think I should say is that the development description on a planning permission is a limitation which, if not kept to, it could be held that the PP has not been implemented. Where it gets complex is where you might have done some of the works but not others. It does sound as if you might have varied the 'limitation' so much that commencement might indeed have not occurred. Complex.

    One must also have regard to the condition and whether these have been breached in any way. Again, complex.

    Sorry, cant help[ more than that.

    Regards, Peter Kyte


      Thanks for your comments. To clarify:

      - planning has accepted that all conditions precedent have been fulfilled.

      - all the works we have commenced are in the course of building out the proposal approved in the final of the three applications. We are not relying upon or following the earlier approvals. The proposed turning areas, although previously approved, were also included as part of that third proposal.

      - the approved earth sheltered extension is approx 1.5m wide and runs the length of the building. The query was raised because we have excavated 4m wide for the length of the building. This was to allow access for the appropriate size machinery and also to allow us to incline the new hill face for safety during construction of the retaining wall. We have set aside the materials for back filling immediately adjacent to the works. All of the area excavated is within the building/garden curtilage.
      Assume I know nothing.


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