Implementation – deviation from plans

Roderick Morton analyses a recent case which examined, amongst other things, whether a permission can be considered implemented if there is deviation from the approved plans.

In Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin) the matter had a long and convoluted planning history back to 1984 with the developer making several applications for permission for one or more dwellings which were all refused due to their effect on the character and appearance of the countryside and an Area of Attractive Landscape.

In 2010, an inspector granted permission on appeal for a single storey building for general storage and secure storage of vintage tractors. Implementation within 3 years and compliance with plans were conditioned, as was a pre-commencement requirement to submit details of materials and landscaping. Use was restricted to storage by condition.

The developer did not discharge the pre-commencement conditions but dug and concreted foundations by 2012. There the development stopped until 2018 when the developer built out the barn with a few minor changes which the council decided not to enforce against. After substantial completion, the barn was used as storage whilst some building control issues were resolved.

It will be a surprise to absolutely no one that, the day after receipt of the building control completion certificate for the barn, the developer sought permission for its change of use to a dwelling. Perhaps more surprisingly, the council granted permission. A neighbour sought judicial review and the council agreed by consent to quash the permission and reconsider the decision.

The council sought a report from a planning consultant. The consultant advised that there were differences between the 2010 approval and the as-built barn but that the barn could still be used as originally intended such that it was not materially different to the original permission in terms of appearance or function.  The barn permission had therefore been implemented, any differences were not material, enforcement action was not justified and the building could be considered an existing building. Which, the developer said, had become redundant (for reasons not recorded in the decision but apparently accepted). This supported its change of use in accordance with relevant local policy.

On re-determination, the council therefore granted permission for the dwelling. The neighbour again sought judicial review of this decision. The neighbour also sought judicial review of the decision not to take enforcement action but this was out of time.

The court’s decision sets out, at some length, relevant case law on a number of points. Perhaps the most interesting is in relation to implementation of a permission.

Implementation of an operational development permission takes place when a development is commenced. It is commenced when a material operation comprised in the development begins to be carried out (s56 TCPA 1990). Very little is required for a “material operation”. But the material operation has to be “comprised in the development”. If, in the end, the developer builds something else, then the question is whether (a) implementation has taken place so that the permission is live but in breach of condition or (b) the permission has not been implemented at all because the initial steps were not comprised in the development for which permission was obtained but rather a different development.

It is common for developers to argue that if, for instance, the foundations are built per plans, there has been a material operation comprised in the permission and any later departure from plans does not affect implementation.

The question was settled in Commercial Land Limited v Secretary of State for Transport, Local Government and the Regions and another [2002] EWHC 1264 (Admin). If there are material differences between what was permitted what was built, there is no commencement and no implementation. The approach was followed in several cases, including most recently Atwill v New Forest NPA [2023] EWHC 625 (Admin). But what if the differences are not material?

In the recent Hillside case, the Supreme Court decided that immaterial changes are within the scope of the permission itself. This is so even when there is no minor amendment permission under s96A. In doing so, the Supreme Court followed the decision in Lever Finance ltd v Westminster (City) LBC [1971[ 1 QB 222 where:

“The permission covers any variation which is not material. But then the question arises: Who is to decide whether a variation is material or not? In practice it has been the planning officer. This is a sensible practice and I think we should affirm it."

This last point is very important. The question of materiality is a matter of fact and degree for the council/inspector. The court will therefore only interfere when there has been an unreasonable decision, not simply because the court disagrees with the conclusion.

If the differences are within the scope of the permission, it follows that the permission has therefore commenced, it has been implemented and, if implemented in time, it can then lie unfinished for years.

In the Southwood case, the neighbour argued that the planning consultant, and therefore the council, had approached the question incorrectly. The neighbour argued that issues of expediency of enforcement action were conflated with materiality of the differences between permitted and as-built buildings. The court observed that the point could have been better expressed but decided ultimately that, on the question of materiality, the correct approach had been taken. The council had considered whether the differences were material and reached the planning judgement that they were not. This was not something in which the court should readily interfere and appeared correct in any case.

There is a 2017 case which is cited in the PINS Inspector’s Manual, Faisal Hussain v SSCLG [2017] EWHC 687 (Admin), 2017. The judgement, quoted in the manual, includes the throwaway line that “…it is possible to commence a development for the purpose of section 56 and thereby meet a deadline forming a condition of the permission, and then later to deviate from the permitted works in a manner that later becomes an enforcement issue without retrospectively altering the fact that the commencement of the development had occurred for section 56 purposes.” Commercial Land and the subsequent cases were not cited in Hussain and the point was obiter in any case. It is difficult to believe that Hussain can be considered good law on that point in the light of Southwood.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.