Friday, 13 February 2015

The 56-day rule - a practical example


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When I wrote my piece on the 56-day rule the other day, I queried the position where notification of the council’s determination of the prior approval application went out very close to the deadline, and so was not received by the applicant within the 56-day period. I am grateful to a correspondent for drawing my attention in this connection to an appeal decision in Tower Hamlets, issued on 24 June 2013 (APP/E5900/C/12/2182746).

This was an application for prior approval in respect of a telephone kiosk under Part 24. The inspector stated at the beginning of his decision letter that the authority had 56 days in which to give notice whether prior approval was required, and for the applicant to receive such notice. It appears to have been assumed without question in this case that a written notification sent within the 56 days but not received by the applicant within that time would not comply with the 56-day rule, so that the right to carry out the development then became automatic, notwithstanding the LPA’s decision and the purported notice of their refusal of the prior approval application.

Both parties agreed that the time within which the applicant should have received such notice expired on 26 December 2011. The authority sent out an undated letter on 23 December refusing prior approval. That letter was received by the appellant in the post on 29 December 2011, outside the 56-day period. However, a copy of this letter was also sent out by two emails at 4.32 p.m. on 23 December, one of which went to the email address given on the applicant’s headed notepaper, and was received by them on that day.

There can be no doubt that transmission of the letter by email to the applicant’s stated email address was an effective communication of the written notice of the LPA’s determination of the prior approval application, notwithstanding that the applicant had not confirmed on the application that they would agree to receive communications by email. Section 329(1)(cc) of the 1990 Act permits the service of a notice using electronic communications where an address for service has been given (as it had been by virtue of its being shown on the applicant’s headed notepaper).

The question, however, still arose as to whether the receipt of the email at or shortly after 4.32 p.m. on 23 December was actually in time. At first sight it seems obvious that it must have been. But there’s a catch!

The applicant relied on Section 336(4A) of the 1990 Act, which provides that where an electronic communication is used for the purpose of serving or giving a notice or other document on or to any person for the purposes of this Act, and the communication is received by that person outside that person’s business hours, it is to be taken to have been received on the next working day, and in this subsection, “working day” means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.

The inspector quite rightly drew attention to the words “that person’s business hours”. This does not mean ‘normal’ business hours, but the business hours which that person chooses to keep. Whilst it may be usual for offices to remain open until 5.00 or 5.30 p.m., some businesses do close down earlier on Friday afternoons and this was, of course, the last working day before the Christmas holiday, so it is not surprising that the applicant’s office closed down for Christmas before 4.30 on that day. In any event, if a person keeps business hours that are different from the norm, it is their own business hours which apply for this purpose.

In this case, therefore, the email of 23 December had been received outside the applicant’s working hours, and so (in accordance with section 336(4A)) it had to be taken to have been received on the next working day, which was Wednesday 28 December in this case, because Christmas Day fell on a Sunday and so there was an extra Bank Holiday on Tuesday 27 December. So the notification of the council’s refusal of prior approval was received outside the 56-day period after all, and on that basis the Inspector held the applicant had been entitled (as they did) to go ahead with the erection of the telephone kiosk.

I am not aware of this appeal decision having been challenged, but I note that whilst paragraph A.2(6)(a) of Part 24 refers to “the receipt by the applicant from the local planning authority of a written notice of their prior determination that such prior approval is not required”, sub-paragraph (b) uses the words “the giving of that approval to the applicant, in writing”, and sub-paragraph (c) uses the words “notifying the applicant, in writing, that such approval is given or refused”. Sub-paragraph (d) also uses the words “notifying the applicant, in writing, of their determination as to whether such approval is required”. So the only sub-paragraph that refers to the receipt of written notice by the applicant is (a), relating to a notification (at any time, but in practice within the 56-day period, because one of the other sub-paragraphs would otherwise apply) that prior approval is not required.

I am not totally confident that the inspector’s easy assumption that notification of the refusal of prior approval of the Part 24 application had to be received by the applicant within the 56-day period is necessarily correct. It seems that, so far as notice under sub-paragraphs (b), (c) or (d) is concerned, simply dispatching the notice to the applicant within the 56-day period might in fact meet the time limit, even if that written notification is not received within the 56-day period. If that is correct, then section 336(4A) will not have any application, because it is only relevant in those cases where it is the date of receipt of the notice that counts.

In paragraph N of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”. So far so good; but sub-paragraph (c) refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Which brings us back to the point where we started, with the query I first raised in my post on 9 February. I argued in that piece that sub-paragraph (c) of paragraph N should be interpreted, in the light of sub-paragraphs (a) and (b), as referring to the receipt of that notification by the applicant. But I am still not confident that the courts would agree with this interpretation if the point were ever to be argued before them. Telecoms companies seem to have taken an aggressive stance on this in relation to Part 24 and, in the absence of an adjudication by the High Court, they seem to have persuaded LPAs, and at least one inspector on appeal, that notification of the council’s determination of the prior approval application must be received within the 56-day period. Maybe we should proceed on this working assumption and hope that no LPA ever feels brave enough to litigate the point!

© MARTIN H GOODALL

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