Subjective intention of developer

Subjective intention of developer no longer relevant to prove lawful implementation of planning permission

For many years, it has been the case that a developer does not carry out a material operation, as required by Section 56 of the Town and Country Planning Act 1990, unless, at the time he begins the relevant works, he does so with the intention of completing the development.

The traditional approach is set out in Malvern Hill's DC -v- Secretary of State for the Environment [1982] JPL 439 and R -v- Arfon Borough Council ex parte Walton Commercial Group Limited [1997] JPL 237 in which Buxton J held that if there was no “ongoing intention to develop” he did not see how an operation could be said to be comprised in the development.

This rule has often caused difficulties for developers who wish to carry out limited works in order to implement a planning permission before the expiry of the standard five year period for doing so, but who do not have the resources or business requirement to complete the development immediately.

The recent case of Riorden Communications Limited -v- South Buckinghamshire District Council ([1999] EGCS146) held that on its true construction, Section 56 of the 1990 Act does not require an intention on the part of a developer to carry out or to complete the works for which he had obtained planning permission. It is simply a matter of fact and degree in each case, viewed objectively, as to whether work has been done in accordance with the relevant planning permission and whether such work is material, in the sense of not being de minimis.

In this case, works which had been carried out prior to the five year cut off date to clear the site and lay foundations were held to validly implement the planning permission, notwithstanding that work was suspended for four years when the developer ran into financial difficulties.

This case is the culmination of a series of dissenting case law including South Gloucestershire District Council -v- Secretary of State for the Environment, Transport and the Regions (7/10/98 - unreported) and the Scottish case of East Dumbartonshire Council -v- Secretary of State for Scotland [1999] 1 PLR 53.

For further information, please contact Catherine Montgomery at [email protected] or on (+44) (0)20 7367 2476.