A cemetery company in Kent has succeeded in gaining a lawful development certificate confirming that foundation trenches have implemented a planning permission for a chapel and maintenance building, despite their being dug in the wrong place (DCS Number 400-011-499).
Permission had been granted in 2010 and the appellants sought to keep the permission alive by digging trenches for the maintenance building. The inspector recorded that, unfortunately, the trenches were not dug in precisely the right position and, whilst there was some overlap between the foundations as they should have been dug and the foundations as in fact they were dug, this was relatively slight. This prompted the council to claim that the extent of trench that could be argued to represent a start to the 2010 permission was so slight as to be de minimis and therefore failed to constitute a material operation.
The inspector noted that it was the appellants who brought the error to the council’s attention. He asked himself whether, if the building had been completed for more than four years but had been subject to conditions which the council then wished to enforce, could the appellant have argued that this was not the building for which permission had been granted? Bearing in mind that there was an overlap between the intended site of the building, and the actual position, and that the size and shape of the building was the same, it seemed unlikely.
Moreover, the inspector considered it unlikely that the conclusion would be reached that what had been done was materially different from that which was permitted. In addition, he noted that Section 56(2) of the Act indicates that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(4) indicates that “material operation” means, amongst other things, the digging of a trench which is to contain the foundations, or part of the foundations, of a building.
The inspector issued a lawful development certificate confirming that works had been carried out to begin the development. Whilst the company has dug itself out of this hole it is to be hoped that its grave-digging skills are more accurate.
The following DCP chapter is relevant: 6.341