Drainage works

What kind of material operations might be accepted as sufficient to constitute the implementation of a planning permission? Well, drainage works, as evidenced by a recent appeal decision (DCS Number 400-026-151).

In this case an inspector granted a certificate of lawfulness for the erection of a new dwelling, granted permission in 2015, on the basis of underground drainage which had been laid in 2018. The council, the inspector noted, had refused to issue a LDC to confirm that sufficient works had commenced to constitute implementation of the single dwellinghouse. The council’s stance was that, whilst underground drainage had been laid by 23 April 2018, being the ‘material date’, it was not considered that any trench dug comprised the foundations of the new dwelling to constitute a material operation.

“Section 56, subsection 2, (4)(c) of the 1990 Act as amended”, the inspector recorded, “indicates that a material operation means, 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 such trench as is mentioned in (4)(b) above.” He went on to explain that very little is needed to ‘initiate development’ under s56(1). In the case of Spackman v Secretary of State and Thamesdown Borough Council [1977] the laying of drainage pipes was held to be a ‘specified operation’ even though the foundations’ trenches did not exist. S56(2), he continued, provides 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.

The inspector acknowledged that in the case before him no foundations had been dug, and the trench and pipe fell short of the proposed location of the foundations, but it seemed reasonable to him that the drainage trench had been left short of the line of the proposed foundations in order to ensure that no damage would be incurred.

The inspector noted in addition that in Malvern Hills DC v SSE [1982] the Court of Appeal held that the test for commencement is not the quantum of work undertaken, but whether the work is related to the planning permission involved. Nonetheless, by way of Connaught Quarries Ltd v SSETR & East Hants DC [2001] the beginning of a material operation under s56(2) and (4), for the purposes of keeping a permission alive, has also to be more than de minimis.

The inspector decided that sub-section (c) could reasonably be interpreted to mean a main or pipe which was for the purpose of serving the building permitted, and did not require the pipe to be immediately adjacent to or abutting the foundations. In the appeal case, the pipe laid was to connect the approved dwelling to the existing water supply or foul sewerage system. He considered this operation to be more than de minimis, and was material.

The inspector concluded overall that the drainage-related works carried out were material and were comprised within the 2015 planning permission, and that the appeal should succeed.

Section 6.341 of DCP Online covers Material operations: commencement of development.