Judging the amount of works necessary to constitute the implementation of a planning permission can be difficult, although an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a replacement dwelling in Kent (DCS Number 400-013-504) was ‘mindful that very little is needed to implement a permission for operational development’. This tallies with the inspector’s finding in Cemetery firm digs itself out of a hole.
The inspector determining (DCS Number 400-013-504) recorded that the commencement works cited by the appellant consisted of the laying of a short length of underground drainage pipe. Although there was nothing to be seen on site, photographic evidence submitted to the council before the deadline for the commencement of the permission was sufficient to satisfy the inspector that the works claimed had indeed taken place by the relevant time. He noted that the pipe had occupied a pit of 1m by 1m and on that basis calculated that its length was a maximum of 1.41m.
The inspector recorded that Section 56(2) of the Act states that development of land shall be taken to have been begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(3) specifies that the term ‘material operation’ encompasses, amongst other things, the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any trench which is to contain such foundations or part thereof. In the case before him, however, he found that the works undertaken were so minor and positioned in such a way as to raise the question of whether they were in fact material. He acknowledged, having regard to case law arising from the judgment in Spackman v SSE , that underground drainage works that are no longer visible without excavation might sometimes constitute a commencement of development, even in circumstances where the foundations or trenches referenced in section 56(4) have yet to be created themselves. Nevertheless, he found that the run of drainage was so short and required so little excavation that, if considered in isolation, it would be more usual to regard such works as de minimis. Moreover, it seemed that the pipework must end at least 1.5m short of where the foundations ought to be, thus falling outside the parameters of section 56(4)(c). The appellant had not fulfilled the burden of proof by demonstrating on the balance of probabilities that the limited operation could actually qualify as a commencement of the development in question, the inspector concluded.
The following DCP section is relevant: 6.341