The Court of Session in Doonin v Scottish Ministers has provided some useful guidance for developers and planning authorities as to when development has lawfully been “commenced”, which is a grey area in planning law.
Doonin obtained planning permission from South Lanarkshire Council in November 2001 for change of use of a site from milk bottling to a distribution depot for the recycling of waste material with associated external storage. Development work began in early 2002. Conditions were attached to the planning permission but, importantly, none of those were preconditions which had to be satisfied before development could be commenced (a so-called 'suspensive' condition).
The Council initially argued that Doonin was in breach of the planning conditions, but later argued that because these conditions had not been met, the development had not been commenced within the statutory 5 year time limit. So, because development had not been commenced within 5 years, the Council argued that the permission had lapsed. It initiated enforcement action, against which Doonin appealed.
Doonin argued that ‘commencement’ meant when development was begun. The conditions imposed were not suspensive conditions, and so Doonin was not required to satisfy them before carrying out development. As development had been commenced, its permission has not lapsed.
The Council argued that development had not been commenced and therefore planning permission had lapsed. The Council interpreted ‘commenced’ to mean a process whereby suspensive conditions must be discharged first, and then development begun. The Reporter agreed with this interpretation, and accordingly refused Doonin’s appeal against enforcement action.
Doonin appealed to the Court of Session. The Scottish Ministers defended the Reporter’s decision.
The Inner House of the Court of Session upheld Doonin’s argument. ‘Commenced’ meant when development was begun. The conditions attached to the planning permission were not suspensive, and so they did not require to be fulfilled before the rest of the development works could be started. In any event, a change of use can occur even without all the conditions being fulfilled first. The Court drew a distinction between when development is commenced, and when enforcement action can be taken for breach of conditions: this case concerned the former, and not the latter.
The case is a useful reminder to planning authorities and developers alike to be clear about conditions imposed as part of planning permissions, and when development can be said to have been validly initiated before it expires.