Breach of Planning Permission Negates Commencement of Development

When a developer sought to make use of a 37-year-old planning permission because it had ‘commenced building work’ within five years of the permission being granted, the Court of Appeal was unimpressed.

In 1974, the developer had obtained permission to construct 19 flats in Torquay. The permission required building work to be commenced within five years of the grant of permission and the developer had commenced access works within the required time.

The developer argued that because the access works had been completed within the stipulated time period, no new planning permission need be sought.

The works carried out at that time would normally have been sufficient to keep the planning permission ‘live’. However, the local authority argued that the access works had been carried out in breach of the planning permission, which required that the ground floor levels of the building be agreed with the local planning authority before work was commenced on the site. This had not been done.

The Court of Appeal accepted the local authority’s argument and ruled that the planning permission had lapsed. An application by the developer to have the case heard by the Supreme Court was refused.

If you have a property development which you are planning to ‘mothball’ after doing sufficient work to satisfy a ‘commencement’ provision in a planning permission, it is important to check that you do not breach any other term in the permission.

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