Monday, 9 February 2015
Prior approval applications – the 56-day rule
NOTE: For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.
I have been busy in the past few weeks working on my first book, of which more anon, but as a result there has been no time to write this blog. One of the topics which I have been considering is the widened scope for changes of use under Part 3 of the Second Schedule to the GPDO – especially the conversion of office buildings (under Class J) and of agricultural buildings (under Class MB). This has been the subject of several posts in this blog in the past couple of years, and so I won’t repeat that material here.
As readers will be aware, these changes of use cannot be made until an application has been made to the local planning authority for a determination as to whether the prior approval of the authority will be required in respect of certain aspects of the development (as specified in the relevant Class in Part 3). The LPA has 56 days in which to determine the application, and this has been the source of some difficulty, due to uncertainty as to precisely when the 56-day period begins and precisely what the LPA has to do (and when) in order to prevent the development going ahead without their prior approval after the end of the 56-day period.
So far as the start of the 56-day period is concerned, the wording of paragraph N(9) in Part 3 is perfectly clear. The development cannot be begun before “the expiry of 56 days following the date on which the application was received by the local planning authority”. Thus Day 1 of the 56-day period is the day immediately following the date on which the application is received by the LPA (no matter what day of the week that was). The incidence of weekends and public holidays has no effect on the 56-day period.
Some LPAs seem to be under the impression that time does not begin to run until they have ‘validated’ or registered the application, but this is not so. Provided the application complies with the requirements of paragraph N and is accompanied by the correct fee, the 56-day period will begin to run on the day after it is delivered to the LPA. If payment of the fee follows after the application itself, then the application may be considered to be complete upon subsequent receipt of the fee, and the 56-day period will then commence on the day after that date. (See Infocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin).)
Two points may arise with regard to the LPA’s compliance with the 56-day rule. One relates to the validity of their determination of the prior approval application (or whether it has in fact been determined); the other relates to the communication of that determination to the applicant.
The addition of paragraph N(2A) to Part 3 in 2014 has largely removed the ambiguity that was inherent in the original drafting of paragraph N where a prior approval application is rejected by an LPA because, in their opinion, the proposed development does not comply with one or more of the conditions, limitations or restrictions in the relevant class of Part 3, or the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with them. It is reasonably clear from the wording of paragraph N(2A) that a rejection of a prior approval application in accordance with that paragraph does amount to a determination of the prior approval application, even if the LPA is objectively wrong as to the non-compliance of the development with the qualifying criteria under the relevant class of Part 3. The correctness or otherwise of the LPA’s opinion can only be tested by way of an appeal against this decision under section 78 of the 1990 Act.
However, the adequacy of the information provided relates only to the issue as to whether it is reasonably sufficient to enable the authority to establish that the proposed development complies with the relevant conditions, limitations or restrictions, so as to qualify as permitted development under the class in question. If the LPA purports to reject the application in relation to the adequacy of the information for other purposes, going outside the question of compliance with the qualifying criteria, this may perhaps call in question the validity of the decision. If the LPA’s opinion on this point strays outside these stated parameters, it might possibly be argued that the authority has not actually determined the application, which could raise the possibility that the 56-day period might continue running. In such cases, however, a notice or other written communication informing the applicant of the LPA’s rejection of the prior approval application, whatever the stated reasons, would probably be regarded as a valid determination of the application, leaving an appeal under section 78 as the only course that would then be open to the applicant (unless they then choose to make a planning application instead). Thus it is unlikely that a wrongful or mistaken rejection of a prior approval application would result in the 56-day period continuing to run in these circumstances.
The other point to be borne in mind is that the critical event for the purposes of the 56-day rule is the authority’s “notifying the applicant as to whether prior approval is given or refused”. This does not necessarily seem to require a formal decision notice; a bald statement either that prior approval is given or that it is refused might suffice to meet this requirement. Nor does there seem to be any statutory obligation on the LPA to state their reasons for refusing prior approval, although it would no doubt be good practice to do so, and this does indeed appear to be the standard practice of most authorities.
Bearing in mind that subparagraphs (a) and (b) in paragraph N refer to a written notice of the LPA’s determination that their prior approval is not required, or giving their prior approval, it is clear that the notification of their determination must be in that form (although this does not preclude its being sent in electronic form, such as an email). Furthermore, as subparagraphs (a) and (b) refer to the receipt by the applicant of the notice, it would appear that the notification as to whether prior approval is given or refused must be received by the applicant within the 56-day period. It is clear that merely to make a decision within the 56-day period will not suffice (in contrast to the differently worded provision in Part 6 of the Second Schedule to the GPDO, relating to various operational development on agricultural land), but it also seems, by analogy with subparagraphs (a) and (b), that it may not suffice to post a notice of that decision within that time if it does not actually reach the applicant before the expiry of the 56-day period. Failure on the part of the LPA to observe both of these requirements may result in the applicant automatically being entitled to proceed with the development in accordance with paragraph N(9)(c).
The applicant may be able to provide evidence of the actual date of receipt of the notification, but where this remains uncertain the usual presumption as to the service of documents would no doubt apply.
Despite diligent research, I have been unable to find any relevant appeal decision or judgment precisely dealing with the situation where notice of a determination is posted within the 56-day period (under either Part 3 or Part 24), but is not received by the applicant until after the expiry of this period. (There have, of course, been a number of decisions confirming that the authority is out of time if, having determined the application within the 56-day period, it fails to dispatch the notification of its decision within that period.) However, there was a case in North Somerset in 2009 (apparently not the subject of any appeal or other proceedings), where notification of the refusal of prior approval of a mobile phone mast was sent to the applicant by Second Class post on Day 52 or Day 53, but was not received by them until Day 57. The applicant relied on this as allowing them to proceed with the development. The resulting dispute appears to have been settled by negotiation, although the company continued to insist that they had been correct to treat the late receipt of the notification of the council’s decision as being out of time.
I would be interested to hear from any reader who is aware of any appeal decisions on this precise point (i.e. posting of notification of a determination, either under Part 3 or under Part 24, within the 56 days, but its receipt by the applicant after the expiry of the 56-day period). [But please note – instances where this has occurred but has not been the subject of an appeal decision (or judgment) really won’t be of any practical help.]
The general approach to the 56-day rule is illustrated by the decision of the Court of Appeal in Murrell v. SSCLG [2010] EWCA Civ 1367, on which I commented in this blog at the time. (It was a case which actually involved the 28-day period for the determination of a prior notification of agricultural development under Part 6). This established that the GPDO does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law. The application for determination as to whether prior approval is required does not need to be in any particular form and does not need to be accompanied by anything more than what is prescribed by the GPDO (in the case of a Part 6 application, a written description of the proposed development and of the materials to be used and a plan indicating the site, together with the required fee). It is not mandatory to use a standard form or to provide any information beyond that specified in the GPDO.
The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. The GPDO does not require an application to be accompanied by proposed elevations or a block plan. It does not require a location plan, although in Murrell a location plan was in fact provided with the application. Nor does it require multiple copies of any documents. Since use of a standard application form is not mandatory, the council was mistaken in stating that these were the only forms they could accept and in requesting the appellants to complete and return, in quadruplicate, a new standard form. Accordingly, the council's assertion that the application was invalid was wrong in law.
The Court of Appeal agreed that the council was entitled to ask for further information. It was not, however, entitled to refuse to treat the application as a valid application until that further information was received. The clock carried on ticking from the date of receipt of the application until the expiry of (in that case) the 28-day period.
© MARTIN H GOODALL
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So let us say for example that a Prior notification application is submitted on the 7th Oct with the fee, plans and forms but is not validated till the 31st oct when the LPA say that prior notification approval is required and that it is unlikely to be given as they recently assessed a similar planning application nearby and considered it unacceptable as being too prominent, but then do not refuse it till the 24th December ....would that mean by default the LPA had granted permission ?
ReplyDeleteIn answer to Chris Weetman, it does look as though this authority was well and truly out of time. Assuming that the application and fee were complete and correct on 7 October, the 56-day period began on 8 October. Notification on 31 October that prior approval would be required was only the half-way stage. An indication at that time that they would be unlikely to give their approval was neither a written notice of their determination that prior approval was not required, nor was it a written notice giving or refusing their prior approval. Clearly the only notice complying with paragraph N(9) was that which was issued on 24 December, which was far too late, and so it appears that the right to proceed with the development duly arose under paragraph N(9)(c). If this is pointed out to the council, I suspect that they will be forced to concede the point.
ReplyDeleteAppeal decision 2182746 (also reported in the JPL) touches on the issue of when the 56 day period expires
ReplyDeleteMartin so the following makes no sense then ( taken from the case officer's report...."This application for an agricultural building was submitted under the prior notification procedure as set out in Part 6, Class A, of Schedule 2 of the General Permitted Development Order 1995 (as
ReplyDeleteamended)...
An application made under this procedure is for a determination as to whether the prior approval of
the Local Planning Authority will be required for the siting, design and external appearance of the
building and the Authority must notify the applicant within 28 days if prior approval is required or not.
The applicant was advised that prior approval was required for the siting, design and external
appearance of the building within 28 days by email of 23 October 14 and by letter 31 October 14"
It is a shame that, over 4 years since the Murrell case, the 'help text' on the Planning Portal continues to collude with LPAs in requiring more information than is statutorily necessary (eg access and visibility splay information) for prior notification applications such as agricultural development.
ReplyDeleteMartin,
ReplyDeleteIf we submitted an application under Class MB and had initially sent a fee for £80 on the same day as the application and the application was acknowledged by the LPA by way of a dated notice and then they subsequently requested further £92 eight days later and a cheque sent which was received by the LPA the following day, when does the 56 day period start in this instance?
I have recently had a prior notification for class mb1 refused, however the refusal notice was emailed to my agent, not to me. In this instance does the agent count as the applicant?
ReplyDeleteAndrew Day
In answer to Andrew Day, I assume that it was the agent who submitted the prior approval application, or that their contact details were given to the council. I don’t think that it could seriously be argued that the council’s decision was not duly notified to you (unless your agent had been sacked, and you had informed the council of this and requested them to correspond direct with you). An agent stands in his principle's shoes if he has been held out as their agent.
ReplyDeleteThat should be "principal's" shoes. I do know how to spell; it's my typing that tends to be a bit inaccurate.
ReplyDeleteWith regard to Chris Weetman’s further query of 12 February, I am confused. When answering Chris’s original query I was under the impression that we were talking about a prior approval application under Class MB of Part 3, to which the 56-day rule applies. If this was in fact a prior notification of a proposed agricultural building under Part 6, we are dealing with a 28-day rule, and slightly different rules apply with regard to notification of the council’s determination that prior approval of siting and design will be required.
ReplyDeleteWithin the 28-day period, the council must either decide that their prior approval will be required or notify the applicant of that decision. In other words, because of the way the provisions of Part 6 are worded, the Council does not have to notify the applicant within the 28 days. This may just be sloppy drafting of the Order, but that is what it says, and the editors of the Planning Encyclopedia confirm this. I can’t go into this any further, as I don’t think Chris Weetman has given us the full facts.
I read in your blog regarding the 56 day rule that with prior approval the applicant can proceed if a decision has not been made or given in writing during that period. This appears to be the case with my application which was refused after the 56 days had expired because the LPA presumed the starting point was when the application was validated. In my case the application form, the stated fee, site plans etc went in during the beginning of August. The LPA then asked for a further £92 which I was unaware was an extra fee that had to be paid. They then asked for further information which I sent in. The application was not validated until several days after this in mid September. As I see it the application start date should have been after the last fee was paid (if not when the application was first received).However, my question is this: The LPA refused the application on three counts, all of which I feel could be disputed at an appeal. If they didn't make the decision within the 56 days can I proceed anyway, regardless of whether the application complied with the policy. Or because they see the application as not complying to all the criteria does this mean I can't proceed as a matter of course. Do I have to try and obtain a certificate of lawful development, go to appeal or alternatively do I have to forget the whole application and start again?
ReplyDeleteThank you very much, I realise it was a long shot!
ReplyDeleteAndrew Day
In answer to Frances, the 56-day period runs from the day after receipt by the council of the balance of the application fee. This was confirmed byInfocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin). The council has to notify the applicant whether prior approval is given or refused within this 56-day period, although (as I have explained) there remains an element of doubt as to whether this notification has to be received by the applicant within this period, so long as it was dispatched before the expiry of the period.
ReplyDeleteThe ‘validation’ process cannot delay the start of the 56-day period (as confirmed by the Court of Appeal decision in Murrell). Nor did the council’s request for further information stop the clock. So it all turns on whether the council dispatched written notification of their decision not more than 56 days following their receipt of the balance of the application fee.
If the council really did miss the boat, then their reasons for refusing the application are totally irrelevant, and the right to proceed with the development has automatically come into effect. However, if they were within time, then the way forward would be an appeal to the Planning Inspectorate under section 78 of the 1990 Act, when their reasons for refusal can be tested against the evidence.
I seem to have overlooked the anonymous query dated 12 February, relating to payment of the balance of the application fee some time after the initial payment of an insufficient sum. (The fee is £172 if the application relates to both change of use and building operations>.)
ReplyDeleteAs I mentioned in a reply a few minutes ago, the 56-day period runs from the day after receipt by the council of the balance of the application fee. This was confirmed byInfocus Public Networks Ltd v. SSCLG [2010] EWHC 3309 (Admin).
Don't most local planning authorities publish their decisions on their own website ? In which case, hasn't the applicant been notified of the decision when the decision is published on that website ? The Development Management Procedure Order 2010 refers to the giving of notice of a decision on an application for planning permission and I think most would regard publication of the decision notice as 'giving notice', so where's the difference ?
ReplyDeleteIn Frances's case, if the LPA's reasons for refusal are because the development falls outside PD parameters, e.g. too large/high etc. and it simply isn't PD, is it still OK to go ahead once the 56 day period has expired?
ReplyDeleteI am in dispute with SHDC over "notice" They contend that the start date was later than my initial application because although location plans were included they did not show the curtiledge. Is it necessary for curtiledge to be included to constitute a valid notice?
ReplyDeleteIn answer to the anonymous comment of 23 Feb, relating to notice of determination, the Order requires the LPA to notify the applicant as to whether their prior approval is given or refused. This means sending some form of notification to the applicant (or to their agent, where it was the agent who submitted the prior approval application). Publication of the decision on the council’s website would not suffice for this purpose, and could not be relied upon as complying with the 56-day rule.
ReplyDeleteIn answer to the anonymous query of 24 February, if the proposed development really does fall outside the parameters that would qualify it as permitted development, then the development cannot be carried out at all – it simply isn’t permitted development. If the council is objectively wrong about this, and they are out of time in giving notice of their determination, then the development can go ahead anyway.
ReplyDeleteHowever, if they give notice of their decision within the 56 days, even though they may be wrong about the qualifying criteria not being met, the safest course would be to appeal to the Planning Inspectorate under section 78. Just going ahead with the development in these circumstances would frankly be risky.
I am sorry that I seem to have overlooked Mike Rutter’s query of 28 Feb, which has belatedly been posted above.
ReplyDeleteWithin the very strict limits imposed by paragraph O of Part 3, the applicant can choose how much land to include within the curtilage. Under these provisions an application confined to the building itself, showing no curtilage at all, would be a perfectly valid application, although this would be inadvisable from a practical point of view, since it would allow residents no amenity space at all. But the LPA is powerless to do anything about that, and they certainly can’t refuse the prior approval application for proposing inadequate amenity space, or indeed showing none at all.
It is important to understand that the permitted change of use will be confined to the area (i.e. the building, or the part of the building, shown on the application plan, together with any curtilage, within the strict limit allowed by paragraph O, that is shown on that plan). Provided that this is what Mike actually intended (i.e. a residential conversion of the building with no curtilage at all), then it would appear that his application may well have been a valid application, in which case the 56-day period started the day after the LPA received that application.
If, however, Mike does want a curtilage around the converted building, up to the limit allowed by paragraph O, then maybe he had better substitute a plan that does show the correct curtilage. If he does choose to take that course, then in the circumstances I think one would probably have to accept that the 56-day determination period will commence on the day after the LPA receives that revised site plan, as it would amount to an acceptance that the original site plan was incorrect.
If the development proceeds on the basis that the dwelling is not intended to have any curtilage at all, then it will have to be accepted that none of the surrounding land can be used for domestic purposes, and that any change of use of that land in the future will need full planning permission, and the planning application for that change of use will be subject to the whole gamut of planning policies governing development in the countryside.
Taking the point in your penultimate para that 56 days would effectively be a revised start following a substitute plan seems odd. Unless it was accompanied by notice letter etc again constituting a full new notice how can a plan alone be sufficient for notice and start of 56 days? I understood that an LPA could only accept or refuse a notice and there is no mechanism for them to extend or delay the start
ReplyDeleteAlso what happens to the original notice/ submission if that is never refuted surely that must continue to run and would achieve consent by non determination? what you seem to be saying is the substitute plan is a new notice?
Why would a substitute plan or indeed any design drawing with changes substituted have any effect upon the 56 day period - surely its just clarification?
In my case the LPA hold no curtilage info was supplied originally (16th June) although they actually treated the notice as valid in that they requested various other bits of information over the next 3 weeks - environmental report, maps etc etc culminating in a request for clarification of the curtilage together with a request for a protected species report on the 4th July a friday. This was supplied on saturday ( not my normal working day) in an attempt to be efficient and to respond in a timely fashion given what i understood to be a strict 56 day period.
The LPA issued a refusal (For 2 technical reasons currently being appealed)by letter only, dated 29th Aug so well in excess of the 56 days if you take the 16th June as start date.I would add the refusal notice states receipt date of 16th June
Having discovered your informative blog i pointed out they were over time and that i had consent by non determination. They are now arguing that there was no valid notice on 16th due to lack off curtilage information and that the start date is now the 6th July when this was received. Curtilage was never an issue during the application period, both parties were unclear at the time as to requirements and it was treated as something to be discussed and agreed. I have pointed out that the 56 days is strict and ignores weekends bank holidays etc and although the letter was dated 29th it was not received by me until the 30th ( 56 days) and given the tower hamlets case you described the effective date for service of notice was the monday 1st Sept and was therefore out of time as well. Any thoughts?
I think Mike Rutter makes a fair point.
ReplyDeleteThis scenario clearly raises practical difficulties, and it may well be that it cannot be resolved in the manner I tentatively suggested.
hi
ReplyDeletethis might be of interest confirms strict interpretation of 56 day rule
Appeal Ref: APP/Z3825/A/14/2224715
Redundant agricultural barn, Horsham Road, Five Oak
s, Billingshurst,
West Sussex RH14 9AT
I am grateful to Mike Rutter for supplying this appeal reference. This turns out to be the same appeal decision as I reported in my latest post on this topic earlier this week, but I did not previously have the appeal reference, so thanks to Mike for this information.
ReplyDeleteThe problem is that we still don't have a clear legal ruling on this issue, although the trend of appeal decisions seems to be in favour of the view that notice must be received by the applicant with the 56-day period.
My application for prior approval for change of use from b1 to c3 was refused, because they believe that it wasnt in use as b1 prior to 30may 2013. however, i could dispute it. But the refusal was sent out to me on day 58 and i received it on day 60. Can i still go ahead with the development because they didnt notify me within 56 days, or am i not allowed because of the reason of their refusal (not being b1 use).?
ReplyDeleteIn response to the anonymous query of 23 May, the answer to this question is entirely dependent on whether the building in question really did qualify under former Class J (now Class O) by virtue of its having been genuinely and exclusively in use within Class B1(a) alone at the relevant time. If it really did qualify, then it would appear that the LPA was out of time in notifying its decision, and the development may proceed. However, if the LPA was objectively right about the status of the building at the relevant time, then the building does not qualify for residential conversion, and the 56-day rule is entirely irrelevant.
ReplyDeleteSince the status of the building at the relevant time is clearly in dispute, the safest course would be to apply for a Lawful Development Certificate under section 192 in respect of the proposed residential conversion.
(The usual disclaimer applies. This must not be treated as legal advice, but purely as the expression of an informal view.)
I submitted a prior approval application (agricultural to residential) to the LPA on 21st April 2015 and it is marked as received and validated on their portal on 22nd April 2015 so day 56 was yesterday. The LPA contacted us by email yesterday to ask for an extension as they had not had chance to discuss comments made by the Highways agency in respect of the access point (there is a current access point we are intending to use but Highways are suggesting that due to the intensified use of this access point as a result of the move to residential a speed survey will be required to reduce vision splays). the extension has been requested on the basis that the Highways agency officer(?) was currently on holiday. However, the comments from the Highways agency were made on 6th May 2015 and I find it hard to believe that the officer in question has been on holiday since that date. We responded to the request for the extension by asking if there was anything else that would be required in order to progress the application so that we could take any appropriate action but have not had a response and have therefore not agreed to the extension. As the 56 days has now passed where do we stand? We appreciate that a request for an extension was made before the deadline (by a matter of hours!) but nothing has actually been agreed?
ReplyDeleteAs noted in a recent post, an LPA may request extra time, but the applicant is not obliged to agree to this. In the absence of written agreement to an extension of time within which the LPA may determine the prior approval application, the 56-day rule will kick in regardless.
ReplyDeleteNothing short of a clear and unequivocal agreement on the part of the applicant to extend time will save the LPA from the operation of the 56-day rule. It looks as though the LPA may have missed the boat in this case. However, if there is any significant element of doubt, either on this point or as to the qualification of the proposed development as permited development in any event, an application for an LDC under section 192 might be the safest course.
The LPA has not posted its determination on our application for permitted development submitted Dec 14. Our planning consultant says we can proceed with the conversion as we have planning by default. The planning officer agreed with our planning consultant by email when he pointed out that we had the right to proceed. Is this sufficient, or should they post their decision by default on their web site?
ReplyDeleteWe have recently submitted a prior approval application for conversion from B1 to C3. We had emailed the application to the LPA and followed up to make a payment. We were not allowed to make a payment as, although the application for confirmed as received, we were told that it would need to 'go onto the system' before a fee payment could be made. We have since had the application validated and fee paid, however, the LPA is only willing to use the date the fee was paid as the receipt date, where as the application was emailed to the LPA 21 days earlier!
ReplyDeleteThe LPA has acknowledged that they could not take the payment and apologised for this but they still stand firm on the idea that the application can not be 'back dated'.
Any advice would be greatly appreciated.
In answer to the anonymous comment of 15 July, I advise my clients to deliver the prior approval application to the council’s Main Reception by hand in an envelope addressed to the “XYZ Council” and containing a cheque in payment of the fee. This prevents the LPA arguing that payment has not been made or disputing the date of receipt. Ideally, the cheque should always accompany the application, so that the application is complete there and then. However, if the payment follows separately for any reason (again by hand to the council’s Main Reception in an envelope addressed to the “XYZ Council”), it is important to ensure that a covering note is enclosed which is absolutely precise in identifying the application to which it relates and the property, etc. The 56-day period then runs from the next day. It matters not a jot whether the Council presents the cheque for payment or not. Payment has been tendered, and that’s that.
ReplyDeleteUnfortunately, this doesn’t help my anonymous correspondent. In the circumstances he relates, payment was not in fact made until some time after original delivery of the application, and the council is quite correct in treating the application as being received on the date when the fee was actually paid. Day 1 of the 56-day period was the next day after that.
In answer to Valerie’s query of 12 July, posting of a ‘non-decision’ on the council’s website or recording it elsewhere in their records is unnecessary. If the PD right has arisen due to the council’s failure to notify their determination of the prior approval application within the 56-day period, then no further formality is required. But you do need to be sure that all the qualifying criteria are met so that there is no doubt that the PD rights do apply to this development. If your planning consultant is clear about this, then development can proceed, but if there is any element of doubt, then an application for a Lawful Development Certificate can be made under section 192 of the 1990 Act.
ReplyDeleteThank you Martin. My planning consultant is clear about this and that we can proceed.
ReplyDeleteHowever would an application for a Lawful Development Certificate give the LPA the opportunity to refuse and then invalidate the current permission by default?
In answer to Valerie’s further query of 3 August - if a Lawful Development Certificate is refused by the council, an appeal can be made to the Planning Inspectorate against that refusal under section 195 of the 1990 Act.
ReplyDeleteThe lawfulness of either existing or proposed development is not dependent on the issue of a Lawful Development Certificate. It is simply a question of law and of fact in each case. Lawful is lawful, and unlawful is unlawful. The refusal by a local planning authority to issue a lawful development certificate cannot affect the position (though in practice it might cause difficulties, as a result of the legal dispute with the council that might then ensue, unless it is resolved by an appeal under section 195, as mentioned above).
Where a Planning Inspector issues an appeal decision in a section 195 appeal, their determination of the factual issues can generally be regarded as res judicata (or as raising an ‘issue estoppel’), so that the dismissal of a section 195 appeal by an Inspector may well have the effect of ‘invalidating’ the permitted development. However, the determination of these issues is never a matter of discretion (unlike the determination of a planning application) – it turns entirely on an objective judgement as to the law and facts of the matter.
I didn't find out about the LPA's decision until 2 days after the 56 day period and this was only by looking at their website. I had started development in the mean time. I received the letter 4 days after the 56 day period had elapsed. I have been arguing with the council that they missed the deadline as I had not received the letter within the 56 day period. I stopped development during this time as they said they were consulting their legal team. It has now been another 59 days of waiting for them to reply with this statement:
ReplyDelete"From a review of the working file it is noted that the forms, the plans and the fee were received for your application for prior approval on the 1st of May. Consultation was undertaken and a decision was made on the 26th June, as evidenced by the date on the decision notice. The Council’s website was updated to show that a decision was made on the 26th June. The decision notice was sent via second class post on the 26th June.
Taking the above points into account the Council made its determination within the time limit required by paragraph 11 (c) and that a decision was posted on the Council’s website on the 56th day following the date that the application was received. Whilst it is acknowledged the decision letter was not received within the 56 day time limit, the Council has fulfilled the requirement and determined the application within the required timescale and notified the applicant a decision had been made within the 56 day period by its updated website.
Based on the above it is considered that the prior approval referenced 1615/15 was determined in accordance with the requirements of the Order. As such it remains the position of the Council the refusal of prior approval is binding."
I have no way of proving wether they did update the website on the 26th June as I only checked it two days later. I think I'm in the right and just want to continue work, but I am scared that they will try and stop me legally. How can I resolve this? do I have to apply for a certificate of Lawful Use or appeal? or can I just get on with it?
Local planning authorities do seem to have some difficulty in getting to grips with the 56-day rule.
ReplyDeleteDay 1 of the 56-day period is the day after receipt of the application (complete with fee), no matter what day of the week that was (e.g. even if it was a Saturday).
The LPA must then notify the applicant of their determination within the 56-day period. There would appear to be an established consensus that notification of the LPA’s determination of the prior approval application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this. My forthcoming book (due to be published in October) explains the reasons for this in some detail.
Publication of the council’s decision on its website could not amount to ‘notifying the applicant’ for the purposes of paragraph W(11)(c). Notification requires a written communication addressed to the applicant (or their agent), whether by post or by email so as to be received by them within the 56-day period, and merely posting information on the council’s website would not suffice for this purpose.
These points should be put to the council, but if they still dispute your right to proceed with the development, you will have to decide whether to risk going ahead in any event or whether it might be advisable instead to apply for a Lawful Development Certificate under section 192 of the 1990 Act in order to establish beyond dispute your right to carry out the development.
I don't understand the legal position on day 57 under Class MB of Part 3. The deadline passes, I hear nothing, I convert my agricultural building to a house in 2 days (hypothetically) and on day 60 I receive my letter saying that's it's rejected as, in their opinion, it does not comply with PD rules. Not being that quick we wrote to them on day 57 saying we had not receive notification therefore could we start work. Two days later we received rejection as it did not comply. Assuming you apply believing it complies and you don't know that it does not comply until notified when does the 56 rule become redundant due to it not complying?
ReplyDeleteIn answer to Martin Lea, I have repeatedly pointed out that if a development does not comply with the qualifying criteria that apply to the relevant Class of permitted development, then it is unlawful, and the 56-day rule simply doesn’t come into it.
ReplyDeleteIt is only if the development really does comply with the qualifying criteria that failure by the LPA to notify the applicant of their determination within the 56-day period that the right to go ahead with the development anyway would then kick in.
Where there is any doubt or dispute, the safest course is to apply for a Lawful Development Certificate under section 192.
Just throwing this out there. Can you enter into an extension of time agreement with applications considered under class T (business to state funded school)?
ReplyDeleteYour thoughts would be greatly appreciated.
The 56-day period can be extended in any case where a prior approval application has been made. All it requires is the agreement of both parties to extend time for a stated period. Of course, the applicant is not obliged to agree to a request from the LPA to extend time, in which case the 56-day rule would continue to apply. Any agreement to extend time must be explicit and must be recorded in writing (even if only by an exchange of emails). This, again, is dealt with in my book.
ReplyDeleteI am desperately seeking advice to my above query. Thank you.
ReplyDeleteThe original query (of 6 November) to which this anonymous correspondent refers has not been published, because it is specific to a particular development, and is therefore unlikely to be of interest to other readers.
ReplyDeleteIf anyone wants legal advice on a particular issue, they should email me (see “Getting in touch” at the head of the Home page). But I must make it clear that neither I nor any of my colleagues in KEYSTONE LAW can offer free legal advice. So we can only respond on the basis of proper instructions, when we have agreed a fee budget and have received a deposit on account of costs in a sum that will be specified when we have sufficient details of the matter and of the advice or action required.
I hope this makes the position clear.
56 days are up on a Class Q application today and no decision notice has been received, though the LPA website now says Prior Approval Given, with decision date today.
ReplyDeleteMy question is regarding the status of any conditions attached to a decision, if it is received after the 56 days. Are any conditions (in particular pre-commencement conditions) now irrelevant, as the development could have commenced before they were received?
our application to convert an agricultural barn into a dwelling was refused signed and dated on the 3rd dec 2015
ReplyDeleteour application was received by the council on the 24th september
validated on the 8th October
they had a target date of 19th nov
they had an expiry date of 3rd Dec
My question is did they miss their deadline
Hamish
In answer to 09grange (4 March), if this was an application for prior approval under Class Q (as I assume it was) then the LPA certainly seems to have been out of time, even if one takes their purported validation date as the start date. In fact, the start date (assuming a correctly completed application and payment of the correct fee) was 25 September, and the prior approval period expired on 5 November.
ReplyDeleteThis answer is subject to the usual proviso that the use of the agricultural building must properly have qualified under Class Q, and that the proposed development must fall wholly within the provisions of Class Q. Attention needs to be paid to the purported reasons for refusal, in case they may reveal some over-riding disqualification. (The usual disclaimer, set out elsewhere on this website, applies, and these remarks must not be relied upon as legal advice.)
Reverting to the previous anonymous query of 4 March, if the notification of the council’s decision was not received by the applicant (or the applicant’s agent, if submitted through an agent) within the 56-day period, then it was out of time (irrespective of the date when it was published on the council’s website), and I agree that it would appear that the permitted development therefore became lawful in any event. In that case, I agree that the conditions (unless they simply repeat the conditions in Class Q, which apply automatically) are of no effect.
ReplyDeleteHowever, caution suggests that proper professional advice should be taken in order to confirm the position before development commences.
Hi, could you please help me understand the 56 day notice.
ReplyDeleteI put in a prior notice application to convert an existing building ie. An old barn to a residential building
The council received my fee of £176 and application on 3\8\15 it was validated on 7\9\15.
I did not hear anything back from the council until they made their decision on 29/10/15 when we were emailed their decision of refusal because they said it could not be proved that the building was used for agricultural purposes. Which it has been.
Does this fall under the 56 day notice? I would be extremely grateful if you could respond asap a my 6 month to appeal runs out on 29/4\16
Thanks
Debt5 is going to have to pay someone for proper professional advice. (I don’t dispense free advice on this blog.) On the face of it, the council missed the 56-day deadline, but this case will clearly turn on whether the building in question did actually qualify within the criteria of Class Q. This would clearly be a significant issue in any section 78 appeal. An appellant has to prove their case ‘on the balance of probability’ (although the ruling in the Gabbitas case may be of some assistance in this context).
ReplyDeleteMartin,
ReplyDeleteI purchased your book yesterday and I must commend you - it is excellent. The only question I have relates to mineral permitted development rights under Article 5 of the 2015 Order.
I'm wondering whether the principle of the 56 day rule (that if the LPA has not responded within that time permission is crystallised) equally applies to the 21 day rule under Article 5 please?
Class K or M of Part 17 of Schedule 2 states that development is not permitted if the relevant period (28 days) has not elapsed. My understanding is that you therefore must wait 49 days (21 days under Article 5 and 28 days under Class K) to begin mineral development.
Is my understanding correct please?
As K McCusker will have discovered, my book is concerned exclusively with permitted changes of use under Parts 3, 4 and 5 of the Second Schedule to the GPDO. I do not pretend to more than a very sketchy knowledge of minerals planning, as it is not an area in which I practise, being by its nature very much a specialist area even among planning lawyers. I must therefore regretfully decline to comment on the restrictive provisions in Article 5 relating to minerals PD and the provisions of Part 17 of the Second Schedule, where PD rights for mining and mineral exploration are set out.
ReplyDeleteA book which sought to cover the whole of the GPDO would be of encyclopaedic proportions, and I am not volunteering to write it! As it is, the text of my own book runs to more than 260 pages, not counting some 40 pages of tables, etc., giving a grand total slightly in excess of 300 pages. The Second Edition (currently in preparation), which will be necessitated by the recent changes that the government has made to the GPDO and the further changes that are expected within the next few months, promises to be even longer.
Fantastic blog
ReplyDeleteI have recently changed the use of a building from office to residential but it was very difficult with a lot of hurdles to jump all the way. Change of use B1(a) to C3 was not going to be approved as there was one objection comment even though I got everything that is needed on time. The council emailed me the day before to say they where going to refuse because of this comment even though the comment was explained by my planner to have no relevance in planning terms for this prior approval.
I think it was the 56 day rule that saved the day as the council ran out of time We reminded the council of the N(9)(c)before they refused change of use because they failed to start the application on the 13th instead they started it on the 22nd. Through reading this blog I checked there dates and played the N(9)(c) card and the next day, (what the council claimed was the last day) success it was approved.
They have sent approval subject to conditions and I was wondering if these conditions have to be done because technically the time run out before they issued them?
thank you Martin Goodall I think you saved the day
I cannot comment on the case mentioned by the anonymous correspondent of 21 June but, if the notification of the LPA’s determination of a prior approval application is received by the applicant outside the 56-day period, then this would be of no legal effect, and the applicant would be entitled to proceed with the permitted development without complying with any conditions imposed on the purported prior approval. However, the applicant would need to be sure that the council had definitely missed the deadline under the 56-day rule.
ReplyDeletehi
ReplyDeleteI just wondered once you have got permitted development rights to a agriculture building is their a application you can make to alter the outerskin in which the building is built., and can parts of the builing have new foundations.
claire
The answer to Claire Houghton’s question of 28 July will be found in my book, “A Practical Guide to Permitted Changes of Use” – see paragraph 9.7 in Chapter 9. (Among other things, any alteration to the outer skin of the building must not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any point.)
ReplyDeleteMartin, my Council telephoned me on day 56 to advise that the prior notification application (Class Q) had been refused. The decision appeared on the web site two days later and I received written notification on day 59, There was no attempt to email it to me. I advised the LPA that the decision was issued out of time, so had no legal effect. The LPA has responded, saying they have taken legal advice and expressing the view that there is no requirement for notice to be given in writing (see W11(c)). They say a phone call constitutes 'notifying the applicant'. Your thoughts please?
ReplyDeleteLenny
In answer to Lenny (16 September), I have dealt with notification of the council’s determination of the prior approval application in some detail in my book “A Practical Guide to Permitted Changes of Use ” (see Chapter 15, paragraph 15.5). Bearing in mind that sub-paragraphs (a) and (b) in paragraph W(11) refer to a written notice of the LPA’s determination that their prior approval is not required, or giving their prior approval, it is clear that the notification of their determination must be in that form, but this does not preclude its being sent in electronic form, such as an email. It is idle to suggest that paragraph W.11(c) is to be interpreted differently from W.11(a) and W.11(b) simply because the words “written notice” do not appear in this sub-paragraph. Notification of the refusal of prior approval must also be in written form. Clearly a telephone call will not suffice, unless some sort of written notification is also received within the 56-day period.
ReplyDeleteHello
ReplyDeleteI have been asked by a local authority to agree to an extension of time request (in the same manner as a full application) to allow for the environment agency to respond on flooding grounds. Is this allowed in the legislation, and if I agree does this mean my client does not have deemed consent until the new deadline passes (without written receipt of determination). thanks
Like many other questions on this subject, the answer to Emily's query can readily be found in my book A Practical Guide to Permitted Changes of Use (Chapter 15, paragraph 15.3). If my correspondent does not have a copy of the book (tut, tut), then she will have to look up Article 7 of the GPDO itself. Simples!
ReplyDeleteMartin can you clarify the need for the 56 day rule?
ReplyDeleteA LPA is past the deadline.
But you can only proceed with development IF the proposal complied in the first place? So it doesn't matter how long a LPA takes to determine the application - if it doesn't comply with the requirements AND conditions then you cant go ahead anyway!.
What if the LPA regard the location eg next to another working farm, to be undesirable? This is subjective matter of opinion, whereas if the external dimensions are not increased it is a matter of fact.
at what point can you proceed if the LPA has missed the deadline?
In answer to JB (2 October), I have repeatedly made it clear, both here and in my book, A Practical Guide to Permitted Changes of Use, that if a proposed development does not qualify under the criteria for the Class of permitted development in question, or if it will breach any of the limitations, restrictions and conditions applying to that Class of development, it cannot proceed, whether a prior approval application is made or not, and whether the LPA gives notice of their determination or not. The 56-day rule simply doesn’t begin to operate in those circumstances.
ReplyDeleteOn the other hand, if the proposed development does comply in all respects, and if a prior approval application has been duly made, and the correct application fee has been paid, then the 56-day rule will come into play.
The matters for which prior approval is required (in Class Q - transport and highways impacts of the development, noise impacts of the development, contamination risks on the site, flooding risks on the site, and whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a residential use) will only be relevant if there is a timely refusal of prior approval by the LPA, duly notified to the applicant within the 56-day period. If the 56-day period expires without notification of the LPA’s determination of the prior approval application, these matters cannot be raised subsequently, by the LPA or by anyone else. This also applies in a case where the LPA purports to refuse to give its prior approval on one or more of these grounds, but fails to notify the applicant of its decision within the 56-day period. It is then too late for the permitted development to be ruled out on any of these grounds.
Hi Martin. Thanks for all the useful info on your site. I'd like to get your view on something please. We submitted our plans to the LPA on the 4th of July 2016. The LPA asked us to amend some bits and we accommodated all but one of their request. After being told a number of times that we would get a decision, we finally decided to go to appeal on non determination on the 20th of September 2016. On the 13th of October we received a letter from the Planning Inspectorate indicating that they have accepted the appeal. Then suddenly the day after that the LPA send us a decision. But we already appealed based on not receiving a decision. SO the question I'd like answered is: Is the LPA allowed to make their decision weeks after I have already appealed on non determination and is the Planning Inspectorate now allowed to take their comments into consideration? It feels like the LPA just sent a decision when they saw that we were appealing. Is there a legal case against the LPA for this behaviour?
ReplyDeleteThanks in advance and thanks for a great site.
In answer to the anonymous query of 17 October, appeals against non-determination of prior approval applications are a grey area. In theory, they should be unnecessary, and this was the view originally taken by the Planning Inspectorate. But on reflection they realised that issues may still arise as to whether the proposed development does actually qualify as permitted development under the relevant Class in Part 3, and these issues may need to be determined on appeal.
ReplyDeleteThere is nothing to prevent an LPA raising any issues in an appeal, even if they have not been raised at the application (and determination) stage. However, if the development does qualify as PD, and provided that all the other limitations, restrictions and conditions have been complied with, then failure by the LPA to notify the applicant of their decision within the 56-day time limit makes the permitted development lawful, and no consideration can then be given to any reasons for refusal raised by the LPA relating, for example, to highway impacts, contamination, noise, etc. Those matters would only be relevant if the development does in principle qualify as PD, but the 56-day period had not expired when the applicant received notification of the LPA’s decision.
If you think about it, there is no point in the LPA canvassing such reasons for refusal in an appeal where the 56-day rule clearly has operated. They should concentrate solely on any facts that disqualify the development as PD (or anything that prevented the prior approval application being a valid application). If they succeed on this, then the appeal must be dismissed, but if they fail then the appeal must be allowed under the 56-day rule. In either event, issues such as highway impacts, contamination, noise, etc. will be irrelevant.
In the present case, I suppose there could be an argument about whether the application was complete when originally submitted on 4 July, or whether subsequent amendments to the application had the effect of delaying the start of the 56-day period (although I would be very sceptical about this). The LPA might alternatively try arguing that the 56-day period was extended by mutual agreement, but this would depend on clear evidence as to such an extension of time being agreed.
Martin love your blog and have just bought your book to help us with this application process. We have had an application refused due to
ReplyDelete"given the siting and location of the proposed change of use in proximity to a site of importance of nature conservation within the green belt, by lack of a protected species survey to adequately assess the impacts of the proposal on local biodiversity and appropriate mitigation measures, insufficient information has been submitted for the local authority to make a determination as to the desirability of the proposed change of use given its siting and location."
This barn is not in a site of importance or nature reserve. The site of importance to nature is situated across a busy 40mph road from our site it is however inside the green belt. is this a "valid" reason for refusal and should we revamp our existing ecology report to submit with this application? we didn't submit it with the primary application as we thought it wasn't needed.
your thoughts on this are greatly appreciated.
Do you think we could be successful in our application then?
In answer to Jo, an LPA may refuse prior approval under Class Q because “the location or siting of the building makes it impractical or undesirable for the building to change from agricultural to a residential use”. The online PPG advises that “undesirable” suggests that it would be ‘harmful or objectionable.’
ReplyDeleteI have drawn attention in A Practical Guide to Permitted Changes of Use (page 179 in the Second Edition) to an appeal that was dismissed in the absence of a bat survey, which may reasonably be required if there is a demonstrable ecological justification for it. However, this related to the possibility that a protected species may have been present on the appeal site itself. In the present case, the purported reason for refusal relates to the proximity of the site to a site of importance to nature conservation (on the other side of a road). It is a little difficult to believe that a residential conversion under Class Q on the application site would have any appreciable effect on the other site. (The fact that it is within the Green Belt is wholly irrelevant.)
The reason for refusal does not actually assert that the proposed development fails the “impractical or undesirable” test, but is based on an alleged lack of information (in the form of a protected species survey). The LPA’s purported concern about possible impacts of the proposal on local biodiversity and the potential need for appropriate mitigation measures seems to be exaggerated. My own instinct would be to run an appeal against this refusal, although it might be worth taking the precaution first of checking with the consultant who prepared the previous ecological report as to whether the nearby site of importance to nature conservation is likely to be particularly sensitive or vulnerable to the effects (if any) of the barn conversion that is proposed. If not, then an appeal should be pursued, accompanied by an application for costs.
Proper advice on this matter would depend on the actual facts of the case, including any special sensitivity of the nearby site. The planning law team at Keystone Law could advise on this if instructed. Contact should be by email in the first instance.
Thank you for your comments Martin i have taken a look at the comments on page 179 most of which you have explained above. but what if we just do a new survey this would be a quicker more straight forward route and would cover all bases? i am confident that we don't have any bats in our buildings and time is of the essence as we are hoping to get on site asap.
ReplyDeleteThanks Martin your expert knowledge is always appreciated.
Regards
jo
Incidentally how long does an appeal usually take?
ReplyDeleteRegards
Jo
In answer to Jo’s further query of 4 January, appeals against a refusal of prior approval seem to take roughly the same time as ‘ordinary’ planning appeals under section 78. Such appeals seem typically to be taking between 7 and 11 months from the date of submission at present.
ReplyDeleteHi Martin really enjoy your blog
ReplyDeleteWe submitted a PD application by hand to the Local Authority and they issued a receipt. We commenced counting 56 days from the following day. They refused it on the 57th day for the following reasons.
Insufficient information has been provided in respect of the impact of the development in respect of transport and highway impacts or risk of contamination on the land and the impact on human health and the environment from contaminated land as a result of the proposed development. As such, prior approval is refused in accordance with paragraph W(3)(b), Class 3, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
A couple of questions please firstly do we have permitted development rights as the LA only issued their decision on the 57th day.
Secondly going forward if we want to implement the permission do we have any obligation to appeal the LA refusal and if so in which forum would we do this. Alternatively can we just complete the conversion works and afterwards apply for a Certificate of Lawfulness.
Regards Sidney
As Sidney recognises, this is not an entirely straightforward question in view of the apparent ambiguity as to the correct identification of the property to which the application was intended to refer.
ReplyDeleteIf it had not been for that factor, it seems the council would have been out of time and could not then argue about traffic or transport impacts.
We would have take proper professional instructions if we are to advise on this matter.
Martin thank you for your response just to be clear there was no ambiguity as to the correct identification of the property. The Local Authority refused the application on the basis that they required the traffic and transport reports. In the circumstances is it your understanding we now have permitted development rights and can we proceed with the conversion works.
ReplyDeleteRegards
Sidney
I repeat that a proper answer to Sidney’s question would necessitate our taking full instructions.
ReplyDeleteAn application for a Lawful Development Certificate may be advisable in this case in view of the potential problem over the application plan, and therefore over the timing of the application (in view of the query raised by the LPA at the time).
Bashing on regardless would not be advisable in these circumstances.
Oops, sorry!! I have just realised that I have been muddling up Sidney's question with another very similar query (not yet published) where there was a query over the plan. Apologies for the confusion - down to my trying to deal with these queries in a a brief snatched moment among all the other emails flying back and forth.
ReplyDeleteIf there is no other question arising with regard to the application, the qualification of the building (and its use) for conversion, etc., then it does seem that the LPA was out of time, in which case transport issues cannot now be raised by them as an issue.
However, if legal advice on this point is required, then we will still need proper instructions.
great blog, just a quick query in regards to PD, surely if the proposed development does not comply as PD then the application should never be "validated"?instead returned to the applicant? for instance if the LPA receive an application issue an letter confirming it been "validated" and stating that development can commence if the applicant has not been contacted within the 56 day period how would one stand if after the 56 day period (with no notification) the change occuured then 70days later the LPA wrote stating the building did not qualify?
ReplyDeleteI would previously have said that if a building does not qualify for PD, then the 56-day rule can’t operate, but then my attention was drawn to ex p. Palley, which suggests that the LPA in making its determination under Part 3 must be taken to have determined that the development does qualify as PD.
ReplyDeleteIn this case, I gather that the LPA did not actually determine the prior approval application within the 56-day period, and so I am not convinced that reliance could be placed on ex p. Palley in these circumstances. Simply writing to the applicant to say that development can commence if the applicant has not been contacted within the 56 day period, and then not notifying the applicant of the council’s determination of the application within that period, does not seem to me to be sufficient to amount to an implied acceptance that the building qualifies for PD.
So I think that the Council’s contention (even after 70 days) that the building did not qualify can only be challenged either by an appeal against the formal refusal of prior approval (albeit that it was made outside the 56-day period) or, alternatively, by applying for an LDC under section 192 on the grounds that the development is now lawful. I am bound to day, though, that if the building really doesn’t qualify it is unlikely that either of these alternatives would be successful.
thanks for the resply Martin, still leaves my query? surely if the application does not comply with the GPDO then it cannot be made valid ie "validated"? once validated the applicant has no option but to wait for the 56 day period to either receive determination from the LPA or prior approval regarding traffic etc? or if receiving neither presume its acceptable to proceed via default? This then runs the risk of been told at a later date the proposal did not comply with the conditions or limitations specified? This has a adverse effect on all involved when PD was introduced to speed the planning system up!
ReplyDeleteAn LPA may purport to “validate” a prior approval application, but in practice this is nonsense. There is no provision for prior approval applications to be “validated”, so the communication from the LPA (which in reality was no more than an acknowledgement of receipt of the application) is of no legal effect. If the application is a valid application, and the use of the building and the development proposed do both qualify for PD, the 56-day period begins to run on the day after the application (and fee) is received by the LPA. But if building or the development does not in practice qualify for PD, then the 56-day rule simply doesn’t apply.
ReplyDeleteThe only exception arises (apparently) where the LPA grants prior approval or determines that its prior approval will not be required. In that case (and only in that case) it would seem, on the basis of ex p. Palley, that the LPA must be taken to have confirmed that the building and the proposed development do qualify for PD, and so the LPA is not subsequently be able to go behind that prior approval and deny the lawfulness of the PD (assuming it is carried out in accordance with the application and any lawfully imposed conditions).
Martin,
ReplyDeleteWe submitted a prior approval for A1 to A3 on 25th April. The Council did not validate it until 23rd May. The decision is due on 20th June. They have consulted the wrong addresses, as whilst the red line plan is correct, there is some confusion about the streetname - they consulted based on a different site just round the corner so haven't consulted immediate neighbours. They now don't have time within the 56 days to reconsult so are asking us to withdraw and resubmit. If we leave the application in, can they refuse it without doing the full 21 day reconsultation for the correct neighbours? Or are they obliged to do this before making any decision (Approval or refusal) and will therefore need to let it overrun the 56 days regardless, in which case we have them in a checkmate position as we will get it based on the 56 day rule?!
The answer to Mark86 is that it depends whether the application itself was correct. If the confusion about the street name was on the part of the applicant (so that the application was in fact incorrect), then the application itself might not be a valid application. On the other hand, if the confusion was solely on the part of the LPA, and did not arise from the information given in the application, then it’s their problem and the 56-day rule would appear to run from the day following the date on which the LPA received it.
ReplyDeleteI have two Class Q refusal decisions which the LPA accepts were emailed to misspelt email addresses on Day 56, and therefore not received.
ReplyDeleteThe LPA is now trying to claim that posting of the decision on their website in each case suffices as "notifying the applicant" (W(11)(c)).
This point is dealt with in your book, Martin, but I am wondering if there have yet been any appeal decisions clarifying this point which I can cite.
I can’t help feeling the Council are up a gum tree here. They do not seem to have complied with paragraph W.11(c) within the 56-day period. By sending the notification to the wrong email addresses the Council clearly did not succeed in notifying the applicants as required. I haven’t had time to research appeal decisions regarding posting the determination on the council’s website, but it seems pretty clear to me that (as stated in my book) this cannot amount to giving written notice to the applicant (as required by the GPDO). In summary, the council failed in both of these cases to communicate their decision to the applicants within the 56-day period, either effectively or at all.
ReplyDeleteWhether this entitles the applicants to go ahead with their proposed developments does still depend on their qualifying as PD under all the relevant criteria of the class in question. As is clear from the decision of the Court of Appeal in Keenan v Woking BC [2017] EWCA Civ 438, the 56-day rule cannot make a development lawful if it does not in any event qualify as PD.
Martin
ReplyDeleteHaving read through the great blog and comments. I have query about a different perspective. That of a neighbour and not the applicant.
My neighbour applied for Prior notification submission for change of use from agricultural building to 1no. dwelling (Class C3) and associated building operations.
We raised an objection to a new first floor window in the proposed development. This window would directly overlook our rear garden and remove any privacy we enjoy.
Almost immediately after the 56 day period the council have issued a letter stating that the application was not determined by the Local Planning Authority within the 56 day determination period. Hence, in accordance with paragraph W (11) (c) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), the proposed development can commence in accordance with the details submitted with the application.
It appears from this that my objections have not and will not be given consideration for a matter that under normal planning applications would be taken seriously.
Have I misunderstood the outcome? I would be interested in your thoughts.
In reply to the anonymous comment of 26 August, it looks as though the LPA has been guilty of maladministration in this case. Having allowed the 56-day period to expire without determining the prior approval application, the PD right is now operative (as the Council has acknowledged) irrespective of any objections that may have been raised.
ReplyDeleteA further thought occurs to me. The window in question would only come within PD under Class Q(b) if it does not result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point. If it comprises a dormer or any other protrusion above the roof plane, it would require a separate planning permission. If this is the case here, the LPA’s attention should be drawn to that point. However, a window in the existing wall facade would still fall within Class Q(b)
ReplyDeleteThank you Martin for your comments regarding my window Query.
ReplyDeleteThe window is a new opening in the gable wall of an existing building, that currently has no openings apart from 2 doors and is at 90 degrees to, and upon our boundary. However it does not extend beyond the current external dimensions.
I feel somewhat aggrieved that if this was considered under a normal planning application, then it would be unlikely that the window would be allowed, as I understand that overlooking of gardens may be unacceptable where it would result in an intrusive, direct and uninterrupted view from a main room, to the most private area of the garden. However, because the development will be undertaken though PD then the window will be allowed and deprive me of any privacy. This seems to be a significant inconsistency.
Looks like I better find a good supplier of hedging
This further comment serves as a reminder of a point I made in my book A Practical Guide to Permitted Changes of Use. Although the LPA is required by paragraph W.10 to take into account any representations made to them as a result of consulting neighbours and others, representations received from neighbours may (and quite probably will) range far outside the matters requiring approval in respect of the Class of development in question. But the requirement to take into account “any” such representations does not justify a widening of the issues that the LPA may take into account in determining the prior approval application. The considerations that the LPA can take into account are strictly limited to the matters requiring approval in each Class of development, and any representations that go outside the scope of those matters must be excluded when determining the prior approval application.
ReplyDeleteIn the present case, the complaint of overlooking / loss of privacy would have been wholly irrelevant, and the LPA would not have been entitled to take it into account, even if they had got their act together in time to determine the prior approval application within the 56-day period. Normal planning considerations (such as residential amenity), etc. do not apply to prior approval applications under Part 3.
My impression is that local authorities are just making it up as they go along. For instance, one London local authority has today 'approved' an application well outside the 56-day window.
ReplyDeleteA 'statutory determination date' was originally recorded (as they so often are) for 56 days after 'validation'!! Either way, some time after the 56 days, an 'agreed expiry date' was finally recorded, and then a decision issued. I can find no document on the LPA website confirming this 'agreement', but a unilateral undertaking (no parking permits) was submitted the day before the 'agreed determination date'. So, it seems like they get there in the end, but I can't help wondering if the present system relies on the gullibility of the applicant.
Martin
ReplyDeleteOne area that seems very 'grey' to me in relation to prior approval applications is quite what is expected to happen inside the 56 day period. Article 7 of the GPDO refers to applications made to LPAs for both prior approval (implying the granting or refusing of the details) OR a determination as to whether such approval is required.
If we take the typical office-to-residential category, what is required is a determination as to WHETHER prior approval will be required, not the granting of refusing of that approval in itself.
If that determination is duly made inside the 56 days, what time limit applies to the further consideration of whether to grant or refuse the supplied details?
In reply to the anonymous query of 10 October, there is no confusion here. The prior approval application must be determined and the applicant must be notified of that determination within the 56-day period. The determination may be (1) that prior approval is not required, (2) that prior approval is required and is granted, or (3) that prior approval is required but is refused.
ReplyDeleteIf an LPA were to notify an applicant in response to a prior approval application that prior approval is required, but then failed to notify the applicant within the 56-day period as to whether prior approval is granted or refused, the right to carry out the PD would be automatic under the 56-day rule (assuming that the development does actually qualify as PD). In practice, there would be no point in an LPA giving two separate notifications to an applicant, first as to whether prior approval is required, and then secondly (if it is required) whether it is granted or refused. In practice there is just one notification of the determination of the application.
Hi Martin,
ReplyDeleteI have read your blog with interest...
We have just had a prior notification application for conversion of an agricultural barn to a residential dwelling turned down and asked to subject a full planning application. So far, the North Lincs Council are refusing to provide their rationale for refusal.
How are you expected to appeal against a decision without understanding the councils decision for refusal?
I haven’t read every single post, just quite a few and I think my case may be different.
ReplyDeleteMy undersranding of the law is that LPA has 56 days to *process* the application.
When I submitted mine they sat on it 6 weeks and then said I had underpaid ( because it’s not really clear which of two fees is due.). I paid the extra instantly by bacs.
Surely the six weeks they wasted doing nothing should count towards the 56 days??? It certainly would in a fair world!!
Mike
In reply to Mike’s query, a prior approval application is only valid when the correct fee has been paid (£80 for change of use alone; £172 where both a change of use and associated operational development are involved). This is very clearly stated in paragraph 13.7 of Chapter 13 in my book, A Practical Guide to Permitted Changes of Use, and the fact that the 56-day period does not begin to run until the full fee has been paid is emphasised in paragraph 15.0 of :
ReplyDelete“If the prior approval application is not a valid application, because it does not comply with the terms of paragraph W.(2), including the payment of the correct application fee, the 56-day period will not commence, and the 56-day rule will have no application in those circumstances.”
The LPA cannot be blamed for an applicant’s mistake in failing to pay the correct fee. In this case, I understand that the balance of the £172 fee was eventually paid, so that the 56-day period then commenced on the day after the balance of the fee was received by the LPA. The rules are very clear, and there are no exceptions or excuses where an applicant has failed to deliver a valid application (including payment of the correct fee). I see no reason why the LPA should be thought to be under any obligation to sort out a mistake on the part of the applicant.
In reply to the anonymous comment of 7 November, there is no statutory requirement for an LPA to state their reasons for refusing a prior approval application, but if the refusal is then appealed, the LPA will have to explain to the Inspector why they refused it. Arguably, where the applicant (appellant) is put to unnecessary expense in preparing and presenting their appeal due to the failure of the LPA to make it clear from the outset why the prior approval application was refused, this might well be seen as unreasonable conduct which would justify an award of costs against the authority.
ReplyDeleteIn these circumstances, in order to be sure that all bases are covered, the appellant may have to put forward evidence in the appeal demonstrating that the pre-existing use qualified for permitted development within the relevant Class in Part 3, and also covering all the issues that had to be addressed in the application.
Martin: this blog is an excellent resource. Thank you.
ReplyDeleteAny thoughts on this scenario?
A prior approval application for a telephone mast under Part 16 of Schedule 2 is refused but company says they have deemed permission because the council "failed to fulfill the 2-stage requirements of the prior approval system, having not firstly clarified that prior approval would be required prior to determining the application as 'refused'". So, the decision was in time, but never said explicitly that prior approval was required. It seems obvious that if the Council refused prior approval they were implicitly saying it was required but they are citing APP/B6855/C/08/2088145 to say it doesn't matter because they say the Council didn't comply with the letter of the law.
The point raised by my anonymous correspondent points up the anomalies that arise due to different forms of wording used in different parts of the Second Schedule to the GPDO. This stems from the piecemeal way in which the GPDO was drafted. Consolidation of the Order (as in 2015) has failed to iron out these anomalies.
ReplyDeleteIn Part 3 (permitted changes of use), paragraph W(11) simply refers to:
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the prior approval application was received by the LPA without the authority notifying the applicant as to whether prior approval is given or refused.
This is in contrast to Part 16 (telecoms development), where paragraph A.3(7) does appear, on the face of it, to envisage a two-stage response on the part of the LPA (“where the local planning authority gives the applicant written notice that such prior approval is required”, and then goes on to refer to the giving of that approval to the applicant, or the expiry of a period of 56 days beginning with the date on which the LPA received the prior approval application without the LPA notifying the applicant that such approval is given or refused). Alternatively, the development can proceed upon the expiry of a period of 56 days without the LPA notifying the applicant of their determination as to whether such prior approval is required.
Whether the GPDO was intended to be interpreted in the manner claimed by the developer in the case cited, is open to question, but I don’t think I could give a definite answer on this point. Ultimately, it may take a trip to the High Court to resolve this.
Apply for Notice of prior approval on an old barn for Q class conversion to a house, a notice that an application was needed was emailed to me at 4.10 on the final possible date.
ReplyDeleteI've read vaguely that an email must go out within the applicant's normal office hours. (I'm 70+ and don't do afternoons in the office. I hardly do mornings!)
Is there an actual case that decrees this please?
Terry (currently working from home at 4pm!!)
The rule about the service of notices electronically, including notification of an LPA’s determination of a prior approval application, is set out in the relevant legislation, which I have explained in detail in my book, A Practical Guide to Permitted Changes of Use - see paragraphs 15.2 and 15.5 in Chapter 15 (pages 202 to 203 and 206 to 209 respectively in the Second Edition), where I have also drawn attention to a relevant appeal decision in Tower Hamlets (under what was then Part 24, now Part 160) – see page 208.
ReplyDeleteMartin. I don't know if you are of au fait with the recent appeal decision made with regards to the Former Council Offices, North Quay Weymouth. The Council had gone against what seems to be the nationally held consensus that Council Officer are B1(a) which has now been overturned at appeal. The PINS report in a nutshell concludes that an Office Building, even if build for local government use, will be B1(a) unless it contains any special features as refereed to in the Appeal document. Could it now be concluded that Former Council offices are B1(a) and that the onus is on the council to provide evidence if there decision goes against this? Also would this need to be communicated within 56days, or could a LPA claim after the statutory time period that the application was never valid?
ReplyDeleteI am indeed aware of the appeal decision to which Anonymous refers.
ReplyDeleteIn my recent book, The Essential Guide to the Use of Land and Buildings under the Planning Acts, I dealt with this topic in paragraph 11.1.1, where I drew attention to the judgment in London Residuary Body v SSE [1990] 1 W.L.R. 744.
As I explained in the book, many local authorities occupy several different buildings (constituting separate planning units) for various administrative purposes. Those buildings that are occupied purely as offices, if they are not generally visited by members of the public, and are not used in conjunction with the authority’s deliberative functions, are likely to fall within Use Class B1(a), whereas those buildings, such as a civic centre, which house not only various office functions, but also accommodate a council chamber, committee rooms, interview rooms and other meeting rooms and possibly also pay desks, and advice and information facilities for visiting members of the public would not fall within Class B1, but would be sui generis.
As I read the recent appeal decision, the Inspector's decision (based on his findings of fact) was entirely consistent with this principle.
Does anyone know how the rules regarding 'free go' applications apply to Class Q GPDO Prior Notification applications
ReplyDeleteI have had one LPA allow me to resubmit for free when such an application was initially refused and another has insisted I pay another fee for it
I have looked at regulation 8 of the 2012 fees regulations but it doesn't say it does or doesn't apply to PD applications
If Phil would like to refer to paragraph 13.7 in Chapter 13 of my first book, A Practical Guide to Permitted Changes of Use (page 151 in the Second Edition), he will see that the application fees payable in respect of prior approval applications are governed solely by Regulation 14 of the Fees Regs. The provisions in Regulation 8 (which allow a "free go" for a second planning application in certain circumstances) apply only to the fees payable under Regulation 3 in respect of applications for planning permission. There is no corresponding provision in respect of a second application for prior approval under the GPDO, and so where a second application for prior approval is submitted, for example in order to address some issue identified upon the refusal or withdrawal of a previous application, the relevant fee (now £96 or £206) must always be paid in respect of this further application.
ReplyDeleteThe number of enquiries I am still getting on points of detail on permitted changes of use suggest to me that there are quite a few more people who would benefit from buying a copy of my book. Buying the second book as well (The Essential Guide to the Use of Land and Buildings under the Planning Acts ) would be an even better idea!
I would be grateful for clarification on the 56 day rule where the LPA has requested an extension to their decision deadline. The threat was that they would simply refuse the application if not given more time to gather additional information.
ReplyDeleteThis is the 3rd submission of Class Q PD application, with a decision due 05.07.18 (day 56 following receipt of application and fee). On 03.07.18 they called requesting an extension as the planning officer had gone off sick and had previously failed to a) post a site notice or b) consult with relevant parties. If no extension was granted they would refuse the application. An extension has now been agreed in writing (to avoid an unfair refusal) and I therefore assume the 56 day rule no longer applies? I would be grateful for your thoughts.
In answer to Robyn Harper (24 July), what we call ‘the 56-day rule’ is stretched to a longer deadline when an extension of time has been agreed by the council and the applicant. The LPA is still obliged to notify the applicant of their determination of the application within the time limit as extended.
ReplyDeleteExtension of time may be the only practicable alternative to a refusal where the LPA would otherwise run out of time. However, an applicant is not bound to agree to an extension of time, and if a refusal had been issued this could have been appealed. The council might have been at some risk of having the costs of the appeal awarded against them if they could not have shown some sound reason why the application could not be granted.
Hello!
ReplyDeleteI've really appreciated this blog and I want to give a heartfelt thanks for the comment section as well.
Now I find myself in a similar situation to others, but as in the cases above, this is slightly different.
We have applied for a Class Q planning and it's gone long beyond the 56 day rule. Firstly, we passed the 56 days since the planning office received the information. Then we passed the 56 days from when they registered the information, and our planning expert (Stags) spoke with the planner who was overseeing the case. They were shocked about the 56 day rule, and they stated they needed more time. They then refused the application stating that it does not qualify for class Q planning because they were not sure that it was used exclusively for agriculture.
So - we are moving forward with a CLA.
My question is, since the planner has refused the planning application because "The Local Planning Authority considers that the evidence has not proved beyond reasonable doubt that the building was used solely for an agricultural use as part of an established agricultural unit on 20 March 2013" does that open up the CLA to interpretation by the Parish? Or does this not matter because it was still unclear after the 56 days had passed?
Ridiculous, I know, but here we are.
Thanks in advance for any response.
This is clearly a case for appeal to the Planning Inspectorate under section 78.
DeleteIt seems that the LPA has well and truly failed to comply with the 56-day rule. In principle, therefore, the right to carry out this PD has crystallised.
However, it would still be open to the LPA to submit in the appeal that the evidence does not show that the building was used solely for an agricultural use as part of an established agricultural unit on or before 20 March 2013. That is why I suggest an appeal (although an application for a Lawful Development Certificate might be an alternative, but would probably be more time-consuming).
Note that it is not necessary to prove that the agricultural use still existed on or after 20 March 2013, provided it was last used for agriculture before that date, and provided that it has not been used for any other purpose after ceasing to be used for agriculture. The agricultural use does not have to be proved “beyond reasonable doubt”. The agricultural use only has to be demonstrated “on the balance of probability”. I have discussed the approach to evidence demonstrating the qualifying agricultural use in considerable detail in Chapter 9 of the Third Edition of A Practical Guide to Permitted Changes of Use.
But the 56-day rule can only be relied upon if all the qualifying criteria under Class Q are met, and if the proposed development complies in all respects with the limitations, restrictions and conditions applying to Class Q.
Provided the proposed development does comply in all respects with Class Q, the failure of the LPA to meet the 56-day deadline will prevent the LPA objecting to the development by reference to any of the matters that may otherwise have required prior approval under Class Q.
An application for costs would be well worth making in this appeal.