Navigating planning permissions can be complex for any development project. Chris Crew from Collas Crill explains the new Development and Planning Authority guidelines and provides insights to help developers keep their projects on track.
For the success of any development project, timing is everything.
In challenging economic times, where supply issues, high prices, and market uncertainties weigh heavily, applicants and developers must take a careful and strategic approach in order to avoid planning permission lapsing.
Unlike in Jersey and the UK, and despite provisions allowing for this to be dealt with by way of an Ordinance, under Guernsey’s planning system there is no statutory or otherwise established definition of what works are required to keep a planning permission ‘alive’ and enable development to continue after the standard three year expiry date.
The new guidance
The Development and Planning Authority (‘the DPA’) has published new guidance setting out its position on what is required to demonstrate that a planning permission has been started on site.
Amongst other things, the guidance states that:
Once a development has started the work can continue without the requirement for further permissions to be sought, even if this is over a significant period, providing that there is an intention to complete the development.
It goes on to clarify that:
Generally, commencement of approved works will involve building out of the ground such as starting to build walls off the foundations. On larger schemes construction of access roads or the formation of new accesses or demolition of substantial existing built structures necessary to carry out approved works may amount to commencement.
Before caveating this by saying:
However, preparing or clearing the ground for development, or the digging of foundation trenches does not constitute commencement…
Issues and concerns
Given close similarities between Guernsey’s planning system and those of Jersey and the UK, and absent any statutory definition of ‘commencement’ on which the DPA could base its position, the guidance appears to raise more questions than it answers.
By way of example, the requirement that there must be ‘an intention to complete the development’ is wholly at odds with established and persuasive UK case law. There, the courts have held that an objective approach must be adopted and that there is nothing to justify the, ‘imposition of an ill-defined requirement that the specified operations should be carried out with some particular intention’ East Dunbartonshire Council v SoS for Scotland and MacTaggart and Mickel Ltd, 1998.
Similarly, the suggestion that substantial physical works must be carried out is at odds with leading and many subsequent judgments. In particular, in Pioneer Aggregates (UK) Ltd v SoS for the Environment, 1984, Lord Scarman stated that planning permissions with only a meagre part implemented were hardy beasts with a great capacity for survival. All that is required is that the works must comprise part of the development authorised by the planning permission and be more than de minimis.
Conclusion
Being able to commence an approved development, thereby ‘stopping the clock’ and allowing work to continue at a later date once any issues or obstacles have been overcome, provides applicants and developers with important certainty and flexibility, while at the same time reducing costs and the administrative burden on the DPA in having to deal with repeat applications.
Notwithstanding the DPA’s undoubted good intentions in publishing this guidance, it is no substitute for an Ordinance confirming a statutory definition of ‘commencement’, which would remove any lingering uncertainty and greatly reduce the risk of inconsistent decision making in the future.
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