Monday, 8 June 2015

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

7 comments:

Tom Bright said...

Martin,

In respect of the 56-day rule, do you know what happens if a Prior Notification is submitted less than 56 days before an Article 4 Direction removing the PD Rights comes into force? In other words, can the LPA refuse a Prior Notification on the date the Article 4 Direction comes into force based purely on the fact that PD rights have fallen away?

Many thanks,

Tom

Martin H Goodall LARTPI said...

In answer to Tom Bright’s question of 21 July, there is a saving in this regard in Article 4(2). This provides that an Article 4 Direction does not affect the carrying out of development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval where, in relation to that development, the prior approval date occurs before the date on which the direction comes into force and the development is completed within a period of 3 years starting with the prior approval date.

The ‘prior approval date’ is the date on which the LPA notifies the applicant that their prior approval is not required, or that prior approval is granted or, alternatively, the date on which the 56-day period expires without the prior approval application having been determined, or without the LPA having notified the applicant of their determination.

Thus an Article 4 Direction will have the effect of removing the PD rights under Article 3, even if a prior approval application has been made before the date on which the Article 4 Direction comes into effect, but not if prior approval has already been given by that date or if the 56-day period has expired before that date without the applicant having been notified of the LPA’s determination in respect of the prior approval application.

So the answer to Tom’s question of 21 July is that, in the scenario he has postulated, the LPA could simply ignore the prior approval application, because the Article 4 Direction takes effect before the expiry of the 56-day period and so will remove the PD rights in any event. It really doesn’t matter whether (or when) the LPA refuses the prior approval application. There could be no appeal against that refusal or non-determination because the PD rights will be removed by the Article 4 Direction before an appeal could be determined. In the particular circumstances that Tom has described, only a prior approval issued before the date on which the Article 4 Direction takes effect could save the PD rights. Where such a prior approval is issued, the development to which the prior approval relates can still be carried out notwithstanding the Article 4 Direction, but (as mentioned above) Article 4(2) imposes a 3-year time limit for completion of the development, even in those cases where no completion date is imposed by the relevant Class in Part 3.

passerby said...

Dear Martin,

Firstly many congratulations on your forthcoming publication - I will be buying!

Googling your blog, this post appears to be the only instance where 'LDC' and 'advisable' appear in the same sentence. Is that merely coincidence, or is this really all that they're good for?

Anonymous said...

Hi Martin

A prior approval application under Class O was submitted to the LPA and receipt acknowledged the following day. A week after submission the LPA requested confirmation of how many units the conversion would involve. This was clearly stated in the application and several times in the supporting statement, and consequently the LPA was informed immediately of this fact once their letter was received. That was the last we heard from LPA and the expiry of the 56 days is fast approaching. The application hasn't been listed on their website or validated (although validation isn't relevant as the 56 day period commences from the day following receipt of a complete application). I have a feeling there has been an admin error their end and the application has been over looked. My question is; how can you be safe in the knowledge that the conversion can commence once the 56 day period expires? We strongly feel all the criteria is met under Class 0, but what happens if we commence work and the LPA serve an enforcement notice because at a later date they realise their mistake and refuse the application as they don't believe the Class O criteria has been met? If the 56 day expires and we still haven't heard from the LPA should we contact them to make sure they don't plan on refusing the application at a later date?

Many thanks

Martin H Goodall LARTPI said...

Where the 56-day period expires without the LPA having notified the applicant of their determination of the prior approval application, work can start on the day after the expiry of the 56-day period BUT only if the proposed development does qualify under the relevant Class in Part 3, and only if the prior approval application was correctly submitted (and the correct application fee paid). The development must also comply with all the limitations, restrictions and conditions applying to that Class of development.

If there is any doubt about any of these points, the matter can be tested by making an application under section 192 of the 1990 Act for a Lawful Development Certificate. This would be a less risky course than simply starting the work, but it will inevitably involve some additional expense and delay.

Tracey kidd said...

Dear Martin I have just been refused planning. Do the lpa have to give a reason and can I appeal against it many thanks

Martin H Goodall LARTPI said...

A local planning authority is obliged to give its reasons for refusing planning permission, but there is no corresponding requirement in respect of the refusal of a prior approval application under Part 3 of the Second Schedule to the GPDO.

However, even if there are no stated reasons in the notification of the council’s refusal of the prior approval application, there will almost certainly be a ‘delegated report’ written by the planning officer who made the decision (or a committee report if it was decided by a council committee) accessible on the council’s website, and this should give you a sufficient indication of the reasons that led to the refusal of prior approval.

I confirm that there is a right of appeal to the Planning Inspectorate against the refusal of prior approval (under section 78 of the Town and Country Planning Act 1990) for up to six months after the date on which you were notified of the council’s determination of the prior approval application. Any such appeal should seek to address the issues identified by the council that led to the refusal of prior approval.