In our objection we argued the stated commencement date of the development is wrong and, as a result of this error, the applicant was able to claim their planning permission had been implemented correctly.

In a letter submitted on their behalf by Roach Planning & Environment Limited, the applicant had claimed 'that the ‘commencement date, as defined in the section 106 unilateral undertaking for planning application 28/1560/15/O dated 25th April 2017, is intended to occur on the 27th May 2022’. However, and as we pointed out, Section 56(4) of the Town and Country Planning Act 1990 states that “development is taken to be begun on the earliest date on which a material operation is carried out”. A material operation is defined in the Act and can include any works of construction, demolition, digging foundations, laying out or constructing a road, or a material change in the use of the land.

We then went on to show evidence that construction equipment began to arrive on site on 10th May 2021 and that within two days the Public Right of Way was unusable because the surface was unsafe. As a result the District Council issued a Stop Notice on the 14th May 2021, but despite this work on the site continued. An enforcement notice was then posted on the 14th June 2021 which came into force four days later, but this was also ignored.

We also pointed out that work on the site had begun before Condition 6 of the pre-commencement conditions, namely to install tree protection barriers and tree protection signs to be secured on those barriers, had been satisfied. On this point the case officer concurred, and as a consequence:

on the balance of probabilities the claims of the applicant are not well founded, and planning permission was not lawfully implemented because the requirements of pre-commencement condition 6 were not followed as approved; that the permission was implemented in breach of planning control and therefore the works stated to have implemented the permission cannot be relied upon.

The case officer concluded: 'The application for a certificate of lawfulness should be refused because the works identified by the applicant as implementing the planning permission were carried out in breach of condition 6, which is a conditions precedent matter that goes to the heart of the permission.'