Planning Permission - A Lawful Start?

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...