The 56-day rule – some additional points

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.

A couple of readers have written to me to draw attention to Article 7 of the GPDO. This is a new provision that did not appear in the 1995 Order.

There was no provision in the 1995 Order for any extension of time in respect of the determination of a prior approval application. However, Article 7 (after restating the basic rule that prior approval applications must be determined within 56 days) now allows the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing (which could comprise an exchange of emails).

There is, of course, no obligation on the applicant to agree to such an extension of time, but if they do not do so a prudent authority might then refuse the application fairly promptly in order to avoid the 56-day rule coming into operation, thereby enabling the development to go ahead in any event. It is clear that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. A nil response from the applicant to the LPA’s a request for more time would not prevent time from continuing to run for the purposes of the 56-day rule. There would need to be some written evidence that both parties had agreed to extend time.

One correspondent queried whether sub-paragraphs (a), (b) and (c) in Article 7 do in fact enable time to be extended (or whether sub-paragraph (a) in fact rules this out), but there is no doubt that any one of sub-paragraphs (a) or (b) or (c) may apply; there is a comma after sub-paragraph (a), so it is clear that each is an alternative to the others.

Reverting to appeals against non-determination of a prior approval application, after further representations from the LPA, the Planning Inspectorate subsequently changed their minds in the case I mentioned in my last post, and accepted the appeal, on the basis that the case raised other issues besides the question of non-determination within the 56-day period. In the absence of such additional issues, though, it would appear that it is unnecessary (and in fact impossible) to appeal against the non-determination of a prior approval application. The right to proceed with the development arises automatically. However, if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, it may in such circumstances be advisable to make an application for a Lawful Development Certificate under section 192 of the 1990 Act, as I mentioned previously.

© MARTIN H GOODALL

The 56-day Rule - Some further thoughts

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.

Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior 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.

In paragraph W(11) 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”, although sub-paragraph (c) merely 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”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.

© MARTIN H GOODALL